                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                         SUPERIOR COURT OF NEW JERSEY
                                         APPELLATE DIVISION
                                         DOCKET NO. A-5112-12T2

JAMES B. HURWITZ, M.D.,
                                              APPROVED FOR PUBLICATION
       Plaintiff-Appellant,
                                                 November 24, 2014
v.
                                                APPELLATE DIVISION
                     1
AHS HOSPITAL CORP. and
OVERLOOK HOSPITAL MEDICAL
STAFF,

     Defendants-Respondents.
_________________________________

            Argued October 14, 2014 - Decided November 24, 2014

            Before       Judges   Sabatino,    Simonelli,     and
            Leone.

            On appeal from the Superior Court of New
            Jersey, Law Division, Union County, Docket
            No. L-2194-11.

            Philip F. Mattia argued the cause for
            appellant    (Mattia   &    McBride,    P.C.,
            attorneys; Mr. Mattia, of counsel and on the
            briefs; Alex W. Raybould, on the brief).

            Anthony   Cocca   argued   the    cause   for
            respondents (Bubb, Grogan & Cocca, LLP,
            attorneys; Mr. Cocca, of counsel and on the
            brief; Katelyn E. Cutinello, on the brief).

       The opinion of the court was delivered by

SABATINO, P.J.A.D.


1
    Improperly pled as Overlook Hospital.
       This litigation arises out of a hospital's internal review

and investigation of a surgeon after shortcomings were revealed

in    the    care    that     surgeon     had       provided      to    certain      patients.

After       extensive    administrative             hearings      conducted      within     the

hospital, in which the surgeon and his attorney participated,

the hospital's Board of Trustees revoked the surgeon's clinical

privileges.           The    surgeon      contended        that        the    actions    taken

against him by the hospital were arbitrary, unreasonable, and

unduly punitive.            He sought relief in the trial court, based on

several legal theories.

       The trial court dismissed the surgeon's lawsuit.                              In doing

so,    the    court     relied     upon    immunities          from      monetary     damages

conferred by federal and New Jersey statutes upon hospitals and

the   participants          in   peer   review        processes        when    evaluating      a

physician's         performance     and     in       making    decisions         about     that

physician's clinical privileges.                      See 42 U.S.C.A. §§ 11111 to

11112 and N.J.S.A. 2A:84A-22.10.                     The court found that plaintiff

had failed to present sufficient evidence or indicia to overcome

those       statutory       immunities.             The   court    further       ruled     that

plaintiff had not justified the taking of depositions, or the

pursuit       of    other    additional         discovery,        before       the    immunity

issues were adjudicated.




                                                2                                     A-5112-12T2
       For the reasons that follow, we affirm the trial court's

dismissal of plaintiff's complaint, the rejection of his request

to amend his pleadings a third time to amplify his allegations,

and    the    court's     determination           that   plaintiff       had    failed    to

justify additional discovery.              In particular, we concur with the

trial    court     that    the    hospital        and    the     participants      in    the

hospital's internal review processes are statutorily immune in

this case from monetary liability.                       We further agree with the

court that plaintiff has not identified sufficient grounds to

establish that the hospital conducted its investigation                           without

a     reasonable      basis     for    doing       so,    or    that    the     hospital's

revocation       of     plaintiff's     privileges         was    imposed       without    a

reasonable belief that such action was in furtherance of quality

health care objectives.

       Additionally,       we    sustain       the   trial       court's      ruling    that

plaintiff's conclusory allegations of wrongdoing by the hospital

and     the   participants        in    the       internal       review    process       are

insufficient       to    warrant      depositions         or   the     taking    of    other

additional discovery.              We hold that a challenger's right to

obtain discovery, particularly depositions, in cases involving

these immunity statutes is not absolute.                       Instead, the court may

curtail discovery in its discretion if there are no reasonable




                                              3                                   A-5112-12T2
indicia that a factual basis to surmount the immunities will be

uncovered.

                                          I.

       We   derive    the     following      chronology    of       events   from   the

record,     describing       them   solely     to   the   extent      that   they   are

pertinent      to    the    case-dispositive        immunity    questions       raised

before us.2     In doing so, we acknowledge that plaintiff disagrees

with    some    of     the     hospital's      findings3       of     his    deficient


2
  Prior to oral argument on the appeal, we invited counsel, sua
sponte, to submit correspondence addressing confidentiality and
privacy   issues  bearing   upon   the   disclosure   of   certain
information   in  the   record.      After   receiving   counsel's
submissions,   we   granted   defendants'   motion   to   seal   a
confidential appendix submitted in connection with the appeal,
which contains materials that the trial court had likewise
sealed at defendants' request.     Plaintiff did not oppose the
sealing, provided that if the dismissal of his lawsuit were
vacated by this court and the case remanded, the appellate
sealing order would not foreclose his evidential use of the
contents of the confidential appendix in the trial court.
Defense counsel agreed with that proviso.     Counsel also agreed
that this court is not required under the applicable privacy or
confidentiality laws to use initials or pseudonyms in this
opinion for plaintiff himself or the names of the persons
involved in the hospital's internal review process.       However,
counsel agreed, and we concur, that the names of the patients
who are mentioned in the confidential appendix should be
initialized and not revealed.
3
  Counsel agreed that the findings and recommendations contained
within the confidential appendix may be freely quoted and
referred to in this court's opinion.        See, e.g., Wahi v.
Charleston Area Med. Ctr., Inc., 562 F.3d 599, 610-11 (4th Cir.
2009) (quoting from various correspondence and peer review
committee findings), cert. denied, 558 U.S. 1158, 130 S. Ct.
1140, 175 L. Ed. 2d 991 (2010); see also Poliner v. Tex. Health
                                                     (continued)


                                          4                                   A-5112-12T2
performance   and    that     he   vigorously    contests         the   sanction    of

revocation that the Board of Trustees ultimately imposed.

      Initial Review of Plaintiff's Performance and the Temporary
      Suspension of His Privileges

      Plaintiff     James    B.    Hurwitz,    M.D.,    is    a    board-certified

general surgeon licensed in the State of New Jersey.                      Plaintiff

has   been   granted    clinical       privileges      at    several     hospitals,

including    Overlook       Hospital    ("Overlook"     or    "the      hospital"),

where he first obtained privileges in 1998.

      Eventually,      concerns        arose   regarding          the    care   that

plaintiff had provided to certain patients at Overlook.                         As a

result, in June 2010, the hospital's Chief of Surgery referred

cases of two of plaintiff's patients for review by an outside



(continued)
Sys., 537 F.3d 368, 372-73 (5th Cir. 2008) (summarizing the
findings of an Internal Medicine Advisory Committee and noting
that the appellant doctor was found to have "(1) poor clinical
judgment; (2) inadequate skills . . . ; (3) unsatisfactory
documentation of medical records; and (4) substandard patient
care"), cert. denied, 555 U.S. 1149, 129 S. Ct. 1002, 173 L. Ed.
2d 315 (2009); Gordon v. Lewistown Hosp., 423 F.3d 184, 194 (3d
Cir. 2005) (quoting various findings of the hospital's internal
hearing officer's report as well as other communications
exchanged between the chairman of the credentials committee and
the appellant doctor), cert. denied, 547 U.S. 1092, 126 S. Ct.
1777, 164 L. Ed. 2d 557 (2006); Singh v. Blue Cross/Blue Shield
of Mass., Inc., 308 F.3d 25, 29-30 (1st Cir. 2002) (freely
quoting from an internal "audit" of the appellant doctor's
performance, which stated that "competent expert care was rarely
seen" and that "documented treatment showed evidence of care
somewhat below recognized standards of care").




                                         5                                  A-5112-12T2
expert,    a    faculty       member    at    New    York       University        School    of

Medicine.       The outside reviewer is not affiliated with Overlook.

Plaintiff was not concurrently informed that those cases had

been sent out for review.

    The        outside    reviewer       issued      a     report     in    August     2010,

opining    that,       with    respect       to    one    of    the   two    patients       in

question, plaintiff had not been "proactive in managing [the

patient's] care" and also that he had failed to "intervene when

the clinical situation required."                   The reviewer reached similar

conclusions with respect to the second patient.                              The reviewer

recommended          "counseling,       monitoring,            and    consideration         of

restricting [plaintiff's] clinical privileges[,]" and if such

measures       had    already    been     taken,         "terminating       [plaintiff's]

privileges at Overlook Hospital."

    Soon       thereafter,       on    September         29,    2010,      the    hospital's

Medical     Executive         Committee       ("MEC")          convened      to    consider

authorizing an internal investigation into plaintiff's clinical

competence.          On that same day, the twenty-six MEC members in

attendance      unanimously       voted       in    favor      of    commencing      such    a

formal investigation.

    The next day, September 30, 2010, the                             president of the

hospital's medical staff issued a letter to plaintiff, notifying

him that the MEC had begun the investigation.                           As a consequence




                                              6                                     A-5112-12T2
of    the     pending   investigation,              the    president        temporarily

suspended     plaintiff's       clinical      privileges.            This       temporary

suspension was imposed pursuant to the hospital's bylaws.

      The Chancery Division Action

      Less than a week later, on October 1, 2010, plaintiff filed

an action in the Chancery Division seeking injunctive relief to

restrain and enjoin the hospital from suspending his privileges.

Plaintiff     then   filed   an    amended          complaint       in    the   Chancery

action, adding as a co-defendant the hospital's medical staff

("the Medical Staff").          The hospital and the Medical Staff filed

opposition to the injunctive application.

      After hearing initial oral argument, the Chancery Division

judge presiding over the matter, Hon. John F. Malone, granted

plaintiff's      request     for    certain           expedited          discovery     and

scheduled     further   argument     on       the    injunction.           Among     other

things, Judge Malone directed defendants to provide plaintiff

with a copy of the hospital's bylaws, written notice of the

reasons for any adverse action taken or proposed, results of any

investigation taken, medical charts, records, and any written

report of the hospital's findings, including a "recitation of

the [hospital's] actions and recommendations . . . and the basis

for   [plaintiff's]     summary     suspension            without    [a]    hearing[.]"

The   judge    declined    to    issue     temporary         restraints         restoring




                                          7                                      A-5112-12T2
plaintiff's      privileges.               Certain        paper      discovery,    including

responses       to        interrogatories,           apparently          were     thereafter

provided in the Chancery action, but no depositions were taken.

      The Investigating Committee's Review

      Meanwhile,          as     a    follow-up      to        the   September     2010       MEC

meeting, the hospital created an Ad Hoc Investigating Committee

("the Investigating Committee"), appointed by the Medical Staff,

to undertake the investigation and to submit a report with its

findings and recommendations to the MEC.                             Five physicians were

named   to    the         Investigating         Committee.             The    Investigating

Committee met several times between October 2010 and December

2010.   Plaintiff was invited to provide written submissions, and

he did so in a letter from his counsel and also in his own

separate      letter.                 Plaintiff       declined,          however,          three

opportunities to meet with the Investigating Committee in person

and to answer questions.

      On December 20, 2010, the Investigating Committee issued

its   report,    along         with       various    recommendations.             The     report

noted that the Committee had reviewed plaintiff's care that he

had   provided       to    six       patients      over    a    year-and-a-half         period.

Based   on   its      review         of    those    six     cases,      the   Investigating

Committee       reached          certain        unfavorable           conclusions.             In

particular, its report found that plaintiff's care was "notable




                                                8                                       A-5112-12T2
for poor documentation of care plans and delays in managing

complications of surgery, which resulted in adverse outcomes."

Given its findings, the Investigating Committee presented the

following recommendation:

              Our recommendation is to remove [plaintiff]
              from the ER [Emergency Room] call schedule
              and to institute ad hoc review of 25
              inpatient surgical cases [in which plaintiff
              had acted] as primary surgeon by the
              Surgical   Care   Review  Committee.      If
              [plaintiff's] performance of the cases were
              felt to be adequate, he would be able to
              return to the ER roster.

    Dismissal of the Chancery Action

    The hospital then filed a motion to dismiss plaintiff's

Chancery action, in lieu of an answer, for failure to state a

claim upon which relief can be granted, pursuant to Rule 4:6-

2(e).    That motion was granted on January 21, 2011.4

    On the same day that Judge Malone granted the hospital's

motion   to    dismiss   the   Chancery   action,   the   MEC   issued    its

decision based on the Investigating Committee's report.                  In a

letter dated January 21, 2011, the MEC informed plaintiff that

it had voted to impose a continued suspension of his privileges,




4
  The dismissal order recites that the Chancery action was
dismissed "with prejudice," although the parties and the trial
court did not treat the dismissal of the Chancery Division as a
bar to plaintiff's subsequent litigation in the Law Division.



                                     9                             A-5112-12T2
subject to various terms and conditions.         Specifically, the MEC

stated as follows:

             After     thoughtful    consideration     and
             deliberation, the MEC voted to impose an
             additional   suspension  of   your   clinical
             privileges commencing upon your receipt of
             this notice for a minimum of three (3)
             months or until such time as you complete
             professional    courses  at    your   expense
             approved by the MEC addressing Medical
             Ethics and Professionalism, Medical Record
             Documentation and General Surgical Review.
             Upon completion of the suspension, your
             clinical privileges will be reinstated at
             which time you will be required to undergo a
             concurrent review of twenty-five (25) cases
             by a supervising surgeon assigned by the
             Chairman of the Department of Surgery.
             During the concurrent review, you will be
             ineligible for the Emergency Department on-
             call schedule, you will not be provided
             routine resident coverage for your patients,
             and any and all elective cases will require
             review and approval by the Chairman of the
             Department of Surgery prior to scheduling a
             patient for the OR [Operating Room]        or
             otherwise admitting a patient to Overlook
             Hospital.

             [(Emphasis added).]

A   little    less   than   a   month   later,   Judge   Malone    denied

plaintiff's outstanding motion for a preliminary injunction.5




5
  The parties do not explain why the trial court issued an order
denying plaintiff a preliminary injunction after the Chancery
action was already dismissed, although we suspect that denial of
the outstanding motion was issued for housekeeping reasons.



                                   10                             A-5112-12T2
      Plaintiff's Law Division Complaint

      Although       it   is   not   entirely      clear   from     the   record,

plaintiff apparently filed a new or a reinstated complaint in

the Law Division some time between January 2011 and November

2011.     Despite the fact that the Chancery action had already

been dismissed in January 2011, plaintiff obtained an order in

May 2011 "transferring" his case from the Chancery Division to

the Law Division.           Plaintiff also requested that his case be

reassigned to the complex commercial track, pursuant to Rule

4:5A-2(b), so as to enable a lengthier period for discovery.

That tracking request was granted.

      In November 2011, the hospital moved to dismiss plaintiff's

Law Division complaint, without prejudice, "pending a resolution

or completion of the hospital['s] hearing and appeal process."

The hospital noted that, under its applicable bylaws, plaintiff

was entitled to a formal internal hearing to contest the MEC's

investigative findings and recommendations.                In fact, plaintiff

had already requested such an internal hearing under the bylaws,

and that hearing had begun.

      Plaintiff did not oppose a without-prejudice dismissal of

his     Law   Division      action   at    that    time.       As   his   counsel

represented     to    us,   plaintiff     agreed   to   such   a    dismissal     to

accommodate the hospital's internal administrative procedures,




                                          11                              A-5112-12T2
in light of the costs and burdens of challenging the hospital's

actions in two separate proceedings at the same time.

       Consequently,     plaintiff    and    the    hospital    entered    into    a

Consent Order on January 19, 2012, dismissing plaintiff's Law

Division      action,    expressly     "without      prejudice,"     pending       a

resolution or completion of the hospital's internal hearing and

appeals process.        Pursuant to the terms of the Consent Order,

plaintiff was permitted to reinstate his amended complaint in

the Law Division "without regard to any statute of limitations

issues."      Aside from this, the Consent Order specified that the

parties      "reserve[d]   all      rights    concerning       the   claims     and

defenses."

       The Hospital's Internal Hearings

       The hospital's internal hearings began in June 2011.                   After

a substantial delay of eight months due to scheduling conflicts

of plaintiff's counsel, the hearings were resumed and completed

February 2012.

       The   hearing    panel    consisted     of   three   physicians      and    a

presiding member from an outside organization.                   Both plaintiff

and the MEC were represented by counsel.                 We are advised that

fact   and    expert    witnesses    for     both   parties    presented      sworn




                                       12                                 A-5112-12T2
testimony to the panel, and were subject to cross-examination.6

Documents     were       presented    into      evidence,   including   medical

records of the specific patients whose cases were the subject of

the    MEC   investigation.          The    parties    submitted   post-hearing

briefs for the panel's consideration.                  A certified shorthand

reporter prepared a verbatim transcript of the hearings.7

       On May 2, 2012, the hearing panel issued its report.                   The

panel concluded that plaintiff had been deficient in his care

and treatment of the four patients whose cases it had reviewed.

With    regard      to    those   patients,      the   panel    concluded    that

plaintiff     "in    various      respects,      demonstrated    poor   surgical

judgment, a lack of attentiveness to patients, untimely post-

operative management of surgical complications and/or a failure

to document thought processes and plans of care."                  In addition,

the panel faulted plaintiff for, as it found, entering a note in




6
  In particular, we were advised at oral argument that plaintiff
himself testified at the hearing and that he presented his own
expert witness, although the limited record supplied to us is
insufficient to confirm this.
7
  We have not been furnished with the hearing transcripts, but,
as we explain, infra, they are not essential to our review of
the legal issues being presented on this appeal.




                                           13                           A-5112-12T2
the   chart   of     one      of    those    four      patients,      which   "falsely

indicated that [plaintiff] had met with the patient's mother."8

      Based   on        its    factual       findings,         the    hearing      panel

recommended   that       the   terms    of       plaintiff's    suspension      as    set

forth by the MEC should be adopted.                     The panel also indicated

that more stringent sanctions beyond such a suspension were not

warranted.       More    specifically,           the   panel   recommended      in    its

written report, in pertinent part:

          3.   [T]hat the suspension of [plaintiff's]
          clinical privileges and other restrictions
          imposed by the MEC were fair and reasonably
          necessary to protect the health and safety
          of patients . . . . [and]

                   . . . .

          5.   The   record  does  not   support the
          imposition    of  greater    sanctions  on
          [plaintiff] than those imposed by the MEC,
          including the revocation of his clinical
          privileges.

      The Board of Trustees' Revocation of Plaintiff's Privileges

      Pursuant     to    the       hospital's      bylaws,      the   hearing      panel

forwarded its report to the Board of Trustees.                           Focusing in

particular    upon      the    hearing       panel's     discrete      finding       that

plaintiff had falsified a patient record, the Board of Trustees


8
  We were advised at oral argument that the hearing panel
apparently found the testimony of the patient's mother more
credible than that of plaintiff on the disputed question of
whether such consultation had taken place.



                                            14                                  A-5112-12T2
revoked      his   clinical     privileges,       effective     immediately.       It

conveyed that decision in a letter to plaintiff dated July 26,

2012.       Plaintiff did not pursue any further appeal within the

hospital of the Board of Trustees' decision, although the bylaws

entitled him to appeal the decision to a "Review Panel composed

of not fewer than three persons."

       Plaintiff's Motion to Reinstate His Law Division Case and
       Defendants' Motion to Dismiss

       After the Board of Trustees informed him of its decision to

revoke his privileges, plaintiff moved to reinstate his action

in the Law Division but simultaneously moved to file a proposed

Second Amended Complaint.              His pleadings, as originally framed

and    then    revised    in    the    proposed    Second     Amended    Complaint,

asserted several legal theories for the recovery of damages,

including breach of contract, breach of the implied covenant of

good faith and fair dealing, and violation of plaintiff's due

process rights.9          Defendants opposed the reinstatement motion.

They    argued,     among      other   things,     that   the    proposed    Second

Amended Complaint failed to state a cause of action as a matter

of    law     because    of    defendants'     federal    and    state    statutory

immunities.


9
  In his last proposed amended complaint, plaintiff ultimately
amended this allegation, given the absence of State action by
defendants, to a claim of violation of "fundamental fairness."



                                          15                                A-5112-12T2
     After hearing oral argument, the Presiding Judge of the Law

Division, Hon. Kenneth J. Grispin, entered an order on March 12,

2013, accompanied by a written Statement of Reasons, denying

plaintiff's         reinstatement       motion,          without         prejudice.

Specifically, Judge Grispin found in his Statement of Reasons

that plaintiff's proposed Second Amended Complaint:

            [f]ailed to plead malice on the part of the
            hospital, or its staff, which was required
            to rebut the presumption of reasonableness
            pursuant  to   [42]  U.S.C.A.  §   11112(a).
            Moreover,  [plaintiff's]  proposed   amended
            complaint fails to state a cause of action
            as to the Board for the very same reasons
            . . . .    Similarly, [plaintiff's] alleged
            "due process" claim, contained in Count
            Three of the proposed amended complaint,
            cannot be sustained against a non-profit
            hospital.

     Thereafter, plaintiff filed a motion                 for reconsideration

and for leave to file a further amendment to his Law Division

complaint.     In support of his motion,               plaintiff submitted a

proposed    Third    Amended    Complaint      naming     as    defendants          "AHS

Hospital Corp.10 Board of Trustees."            The proposed pleading also

names    various    fictitiously-named       parties     who    have     yet     to   be

identified.

     Following      another    round   of    oral   argument,      Judge       Grispin

denied   plaintiff's     motion   for    reconsideration.           In    a     second

10
   AHS Hospital Corporation            evidently    is    the    legal     name       of
Overlook Hospital.



                                        16                                     A-5112-12T2
Statement of Reasons dated May 27, 2013, Judge Grispin concluded

that plaintiff's proposed Third Amended Complaint still "failed

to articulate sufficient facts which would demonstrate malice on

the part of Overlook which unjustly prejudiced [plaintiff] or

that the internal administrative hearing process was arbitrary

or capricious."         The judge granted defendants' cross-motion to

dismiss the Law Division action, conclusively, specifying that

the dismissal was "with prejudice."

      The Contentions on Appeal

      On appeal, plaintiff contends that the trial court acted

prematurely   in    enforcing       defendants'       claimed    immunities.       He

argues that the court should have afforded him an opportunity to

conduct   depositions,        which    he    asserts     might    have     uncovered

admissible    evidence        to    overcome     the    immunities        and   which

potentially could demonstrate that defendants acted maliciously,

arbitrarily, or unreasonably.            Although his counsel acknowledged

at the appellate oral argument that plaintiff had not handled

the patient cases in question "perfectly," and that some degree

of    "remediation"      of   his     conduct    is    appropriate,        plaintiff

asserts that the sanction of revocation imposed by the Board of

Trustees is unduly harsh.

      Plaintiff argues that the Board of Trustees' imposition of

the   sanction     of   revocation,      which    is    more     severe    than   the




                                        17                                  A-5112-12T2
conditional suspension recommended by the MEC and the hearing

panel, circumstantially shows that the Board of Trustees engaged

here in arbitrary and unreasonable decision-making.                   Plaintiff

also contends that the hospital and its agents waived in the

Consent Order their ability to oppose the reinstatement of his

lawsuit.

    Plaintiff therefore urges that the trial court's dismissal

order be vacated.      In particular, he seeks to have his lawsuit

reinstated for the completion of discovery and for a decision on

the merits with a fuller record.

    In     response,   defendants     maintain      that   the   trial    court

correctly enforced the terms mandated by and the public policies

reflected in the federal and state immunity statutes.                     Those

statutes,    defendants     emphasize,     are      designed     to     protect

hospitals and the participants in internal peer reviews from

having monetary liability to doctors who are sanctioned as a

result of such internal processes.            Defendants further submit

that they did not waive in the Consent Order their right to

oppose a reinstatement of plaintiff's lawsuit on legal grounds,

here being the substantive immunities they are afforded under

the federal and state statutes.

    Defendants    further    assert    that   the    trial   court     sensibly

rejected    plaintiff's   request     to   conduct    depositions        and   to




                                      18                               A-5112-12T2
pursue other discovery.            They maintain there is no indication in

the   record,    apart      from     plaintiff's      conclusory        assertions        and

suspicions,      that      the   hospital     or    its   representatives         engaged

here in the sort of ill-founded or nefarious behavior that could

nullify their statutory immunities.

                                           II.

      The    critical        focus    of     this     appeal     centers      upon        the

application of the federal and state immunities that have been

invoked     by   defendants.            We        begin   our    analysis        with      an

examination of the federal statutory provisions, 42 U.S.C.A. §§

11111 to 11112.

      The federal immunities are part of the larger Healthcare

Quality Improvement Act of 1986 ("HCQIA"), 42 U.S.C.A. §§ 11101

to    11152,     which      provides,       in      relevant     part,     that      in     a

"professional review action of a professional review body . . .

(A) the professional review body, (B) any person acting as a

member or staff to the body, (C) any person under a contract or

other formal agreement with the body, and (D) any person who

participates        with    or   assists      the    body    with      respect    to      the

action"     shall    not    be   liable      in    damages     under    any   law    "with

respect to [any review] action," 42 U.S.C.A. § 11111(a)(1), if

the review action is taken:




                                             19                                   A-5112-12T2
            (1) in the reasonable belief that the
            action was in the furtherance of quality
            health care,

            (2) after a reasonable effort to obtain the
            facts of the matter,

            (3) after    adequate  notice   and   hearing
            procedures are afforded to the physician
            involved or after such other procedures as
            are   fair  to   the  physician   under   the
            circumstances, and

            (4) in the reasonable belief that the
            action was warranted by the facts known
            after such reasonable effort to obtain facts
            and   after   meeting  the   requirement  of
            paragraph (3).

            [42 U.S.C.A. § 11112(a).]

      A "professional review body," as that term is used in the

HCQIA, is broadly defined.            The term encompasses "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.A. § 11151(11).

      A   "professional      review    action,"   defined     earlier   in    the

HCQIA, consists of:

            an    action   or   recommendation   of   a
            professional review body which is taken or
            made in the conduct of professional review
            activity, which is based on the competence
            or professional conduct of an individual
            physician (which conduct affects or could
            affect adversely the health or welfare of a



                                        20                              A-5112-12T2
            patient or patients), and which affects (or
            may    affect)   adversely    the   clinical
            privileges, or membership in a professional
            society, of the physician.        Such term
            includes a formal decision of a professional
            review body not to take an action or make a
            recommendation described in the previous
            sentence and also includes professional
            review activities relating to a professional
            review action.

            [42 U.S.C.A. § 11151(9) (emphasis added).]

       Further, the HCQIA defines "professional review activity"

to cover any activity of a health care entity with respect to an

individual      physician     conducted    "(A)     to   determine     whether     the

physician    may      have    clinical    privileges     with    respect     to,    or

membership      in,     the   entity,    (B)   to    determine       the   scope    or

conditions of such privileges or membership, or (C) to change or

modify such privileges or membership."               42 U.S.C.A. § 11151(10).

       Significantly, the HCQIA imposes a rebuttable presumption

that   an   adverse      professional     review     action     undertaken     by    a

hospital against a physician is protected by the immunity.                          As

the statute recites, "[a] professional review action shall be

presumed to have met the preceding standards necessary for the

protection set out in section [42 U.S.C.A. § 11111(a)] unless

the presumption is rebutted by a preponderance of the evidence."

42 U.S.C.A. § 11112(a).             The only specified qualification to

this    broad      immunity     coverage,      then,       is   if    a    plaintiff

demonstrates,      by    a    preponderance    of    the    evidence,      that    the



                                          21                                A-5112-12T2
defendant took action without a reasonable belief in initiating

the   action,    failed    to   provide    adequate   notice     and    hearing

procedures, or otherwise took action without a reasonable belief

it was warranted by the facts after a reasonable investigation.

See 42 U.S.C.A. § 11112(a)(1) to -(4).

      "HCQIA    immunity   is   a   question   of   law   for   the    court   to

decide and may be resolved whenever the record in a particular

case becomes sufficiently developed."           Bryan v. James E. Holmes

Reg'l Med. Ctr., 33 F.3d 1318, 1332 (11th Cir. 1994) (emphasis

added), cert. denied, 514 U.S. 1019, 115 S. Ct. 1363, 131 L. Ed.

2d 220 (1995).      As the House of Representatives Committee that

took part in the HCQIA's passage explained:

           The [immunity] provisions would allow a
           court to make a determination that the
           defendant has or has not met the standards
           specified   in   section  [11112(a)].     The
           Committee intends that the court could so
           rule even though other issues in the case
           remain to be resolved. For example, a court
           might determine at an early stage of
           litigation that the defendant has met the
           [section 11112(a)] standards, even though
           the plaintiff might be able to demonstrate
           that the professional review action was
           otherwise improper. At that point, it would
           be in order for the court to rule on
           immunity.   In such a case, the court could
           still    proceed    to   determine    whether
           injunctive, declaratory, or other relief
           would be in order.

           [Ibid. (quoting H.R. Rep. No. 99-903, at 12
           (1986), reprinted in 1986 U.S.C.C.A.N. 6394
           (emphasis added)).]



                                      22                                A-5112-12T2
      This   immunity      from    monetary      liability    has     been    enforced

repeatedly    by     the       federal    and     state     courts,      aside    from

exceptional       instances      where   the     immunity    has    been     overcome.

See, e.g., Osuagwu v. Gila Reg'l Med. Ctr., 850 F. Supp. 2d

1216, 1239 (D.N.M. 2012) (finding that HCQIA immunity should not

apply because plaintiff was not "given a fair opportunity to

confront and cross-examine the anonymous physicians who prepared

the peer-review forms," and because the peer review panel was

not impartial, given that one of the reviewers was an "accuser,

investigator, prosecutor, and one of [the plaintiff's] judges

[at the hearing]"); see also Colantonio v. Mercy Med. Ctr., 901

N.Y.S.2d 370, 374 (App. Div. 2010) (finding that the defendants

were not clearly entitled to immunity because there remained a

"triable issue of fact as to whether, at the meeting of the

Committee,        some         defendants        knowingly      provided         false

information").

      Recognizing        the    strong   legislative      policy    underlying       42

U.S.C.A. § 11111, the Eleventh Circuit has cautioned that the

proper role of courts on review of peer review decisions "is not

to substitute our judgment for that of the hospital's governing

board   or   to    reweigh      the    evidence    regarding       the   renewal     or

termination of medical staff privileges."                   Bryan, supra, 33 F.3d

at   1337.    Other       courts      applying    the   statute     have     expressed



                                          23                                  A-5112-12T2
comparable   deference     to   hospitals,     their    peer    reviewers,       and

their internal decision-makers.            See, e.g., Harris v. Bradley

Mem. Hosp. & Health Ctr., 50 A.3d 841, 858 (Conn. 2012) (noting

that in enacting the HCQIA, Congress intended to "resolve the

question of immunity under the federal act as early as possible

and   to   reinforce     judicial    deference     to    hospital         decision-

making"), cert. denied, 133 S. Ct. 1809, 185 L. Ed. 2d 812

(2013).

      Similar   public    policies     are     reflected       in   our    State's

cognate    immunity    statute,     N.J.S.A.    2A:84A-22.10.             Like   the

federal law, the New Jersey statute provides broad immunity for

damages to qualified persons for actions taken as part of a

hospital's peer review process.            As is relevant here, N.J.S.A.

2A:84A-22.10 provides that:

            Any person who serves as a member of, is
            staff to, under a contract or other formal
            agreement   with,   participates   with, or
            assists with respect to an action of:

                . . . .

            d.   A hospital peer review committee having
            the responsibility for the review . . . of
            matters concerning the limiting the scope of
            hospital privileges . . .

                 . . . .

            shall not be liable in damages to any person
            for any action taken or recommendation made
            by him within the scope of his function with
            the committee, subcommittee or society in



                                      24                                   A-5112-12T2
             the performance of said peer-review, ethics,
             grievance, judicial, quality assurance or
             professional relations review function, if
             such action or recommendation was taken or
             made without malice and in the reasonable
             belief after reasonable investigation that
             such action or recommendation was warranted
             upon the basis of facts disclosed.

             [(Emphasis added).]

       Although N.J.S.A. 2A:84A-22.10 was adopted in 1979, it has

been cited only infrequently in published case law, at times

just    in   passing.11    None    of    those   cases   has   specifically

addressed    the   legal   questions    presented   here   concerning    the

evidentiary burden of a party seeking to overcome the immunity,

and what, if any, discovery, such a challenger is entitled to

obtain before the trial court rules on a defendant's motion to

dismiss based upon the New Jersey immunity.12




11
   See, e.g., Patel v. Soriano, 369 N.J. Super. 192, 251 n.15
(App. Div.) (noting the statutory immunity provided to a
"hospital performing its credentialing function on applicants
for surgical privileges"), certif. denied, 182 N.J. 141 (2004);
see also Bainhauer v. Manoukian, 215 N.J. Super. 9, 38 (App.
Div. 1987) (mentioning the conditional privilege afforded to
physicians involved in hospital peer review but resolving the
underlying lawsuit on other grounds).
12
   If, in fact, the federal immunity protects defendants, then
there is no need to reach the application of the overlapping
state-law immunity.




                                    25                             A-5112-12T2
                                     III.

     Having canvassed these key aspects of the federal and state

immunity statutes, we now consider the propriety of the trial

court's    dismissal     of    plaintiff's       complaint    seeking      monetary

damages.13     We also examine the related question of whether the

court's enforcement of defendants' immunities, thereby leaving

plaintiff      without   further    discovery,        was   premature.       Before

delving into that analysis, we dispose first of two procedural

matters.

                                         A.

     First,     we   reject     plaintiff's      argument    that    the    Consent

Order should be construed as a waiver of defendants' right,

based     on   their     federal   and        state    immunities,    to     oppose

plaintiff's claims.           The terms of the Consent Order cannot be

reasonably interpreted to bar defendants from interposing their

immunity arguments.           The plain language of the Consent Order

provides that the parties "reserve all rights concerning the

claims and defenses." (emphasis added).

     A consent order is, in essence, an agreement of the parties

that has been approved by the court.                  As the Supreme Court has

13
  Plaintiff's complaint in the Law Division deleted his request
that he had made earlier in the Chancery Division for the
equitable relief of reinstatement of his clinical privileges.
Hence, the only specified relief that he now seeks is monetary
damages.



                                         26                                A-5112-12T2
consistently noted, one of the "'fundamental canons of contract

construction require that we examine the plain language of the

contract and the parties' intent, as evidenced by the contract's

purpose and surrounding circumstances.'"              Highland Lakes Country

Club   &   Cmty.,    Ass'n   v.   Franzino,    186    N.J.    99,   115     (2006)

(quoting State Troopers Fraternal Ass'n v. New Jersey, 149 N.J.

38, 47 (1997) (citations omitted)).             The plain language of the

Consent Order here is not ambiguous, nor is it obscured by the

surrounding circumstances.           Defendants clearly did not forfeit

in   the   Consent   Order   their    right    to    invoke   their   statutory

immunities,    or    their   right    to    invoke    them    as   soon   as    the

litigation was reactivated.

       Moreover, our Court Rules explicitly state that a request

to dismiss for failure to state a claim "may be made in any

pleading permitted or ordered or by motion for summary judgment

or at the trial on the merits."               R. 4:6-7 (emphasis added).

Thus, by its very terms, Rule 4:6-7 permits a party to raise the

defense of a failure to state a claim as late as trial, as well

as sooner on motion.         See Buteas v. Raritan Lodge No. 61 F. &

A.M., 248 N.J. Super. 351 (App. Div. 1991); see also Pressler &

Verniero, Current N.J. Court Rules, cmt. 1 on R. 4:6-7 (2015)

(stating that a defense under Rule 4:6-2(e) "may be raised as

late as trial").       We further note that defendants did, in fact,




                                       27                                 A-5112-12T2
assert the defense of failure to state a claim in response to

plaintiff's amended verified complaint that he had filed earlier

in   the    Law   Division,      albeit    in    a   footnote    in    their    motion

papers, before the Consent Order was entered.

       We recognize that defendants agreed in the Consent Order

that plaintiff could reinstate his amended complaint.                       However,

as plaintiff stated at the appellate argument, he sought to

"reinstate"       not   his    First    Amended      Complaint   but    his     Second

Amended Complaint.             In any event, had defendants acceded to

reinstatement of his First Amended Complaint and then opposed

further amendment or moved to dismiss, the end result would have

been the same.

                                          B.

       A second preliminary facet that we must                    address is the

appropriate procedural context in which to evaluate defendants'

case-dispositive motion.               To be sure, defendants' motion was

couched as a motion to dismiss under Rule 4:6-2(e) for failure

to state a claim upon which relief may be granted.                          However,

both parties in their submissions respecting that motion, as

well   as   the    trial      court,   made     reference   to   and    relied     upon

documentary       materials      from     the     hospital's     internal       review

process.      Those materials were beyond the four corners of the

complaint, although excerpts of them were quoted or referred to




                                          28                                   A-5112-12T2
in the complaint. In his ruling, the judge at times referred to

the entire record presented to him, which clearly went beyond

the discrete excerpts quoted and otherwise referred to in the

pleadings.   As such, defendants' motion to dismiss most properly

should be conceived as a dismissal motion converted to a motion

for summary judgment under Rule 4:46-1 to -6, as is permitted

under the last sentence of Rule 4:6-2.14

     Viewed properly in this more expansive context, we must

evaluate the record before us under the customary standards of

summary judgment practice.        See Brill v. Guardian Life Ins. Co.

of Am., 142 N.J. 520, 540 (1995).        In particular, we are to read

the record in a light most favorable to plaintiff and accord all

favorable inferences to plaintiff that can be reasonably drawn

from that record.    See R. 4:46-2; Brill, supra, 142 N.J. at 540;

see also Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584

(2012)   (applying   the   same   Rule   4:46   standards   on   appellate

review of a summary judgment order).            Upon doing so, we are

satisfied, for the reasons we explain, infra, that the trial




14
   R. 4:6-2 ("If, on a motion to dismiss based on the defense
numbered (e), matters outside the pleading are presented to and
not excluded by the court, the motion shall be treated as one
for summary judgment and disposed of as provided by R. 4:46, and
all parties shall be given reasonable opportunity to present all
material pertinent to such a motion.").




                                    29                            A-5112-12T2
court's entry of final judgment in defendants' favor was sound

and not premature.15

                                         C.

      We turn to the substance of the immunity arguments.                       Even

viewing the record in a light most favorable to plaintiff, we

agree    with    Judge      Grispin    that   defendants      are    entitled       to

immunity from damages as a matter of federal and New Jersey

statutory   law,      and    that     plaintiff    has   failed     to    present    a

sufficient basis to vault those immunities.

      As Judge Grispin correctly found, defendants are clearly

within the presumptive scope of the federal immunity under the

HCQIA.          The   hospital's        internal     review     of       plaintiff's

performance      unquestionably        comprises     a   "professional        review

activity" under 42 U.S.C.A. § 11151(10).                    The participants in

the   review,     including     the     Medical    Staff,     the    Investigating

Committee, the MEC, the hearing panel, and the Board of Trustees

are all "professional review bodies" within the ambit of the


15
   Even if, for the sake of discussion, the standards for
dismissal under Rule 4:6-2(e) are applied here rather than the
summary judgment standards, see, e.g., Printing Mart-Morristown
v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989), we remain
persuaded that the immunity statutes control this case and
mandate dismissal of the lawsuit.       "A pleading should be
dismissed if it states no basis for relief and discovery would
not provide one."    Rezem Family Assocs., L.P. v. Borough of
Millstone, 423 N.J. Super. 103, 113 (App. Div.), certif. denied,
208 N.J. 366 (2011).



                                         30                                 A-5112-12T2
statute.           See    42     U.S.C.A.           §        11151(11).          The     various

recommendations and decisions to impose sanctions upon plaintiff

—— initially a recommended suspension and ultimately the Board

of Trustees' revocation of plaintiff's clinical privileges ——

comprise      "professional           review    actions"          as   defined         under    42

U.S.C.A. § 11151(9), because they adversely affected plaintiff's

status at the hospital.

       As     we   have     already      noted,              defendants    and     the     other

participants       in     the    hospital's             internal    review       process       are

presumptively immune under the HCQIA from monetary damages if

they acted in "the reasonable belief that the[ir] action[s] were

in    the   furtherance         of    quality       health        care,"    42    U.S.C.A.       §

11112(a)(1), "after a reasonable effort to obtain the facts of

the matter," 42 U.S.C.A. § 11112(a)(2), after "adequate notice

and hearing procedures are afforded to the physician . . . or

after such other procedures as are fair to the physician under

the    circumstances,"          42    U.S.C.A.           §    11112(a)(3),       and     with    a

"reasonable belief that the action was warranted by the facts

known after such reasonable effort to obtain facts" and after

appropriate        notice       and     fair    procedures.                42     U.S.C.A.       §

11112(a)(4).

       More    simply     stated,       the     federal          immunity       presumptively

governs this case, so long as the hospital and its participants



                                               31                                       A-5112-12T2
proceeded in a fair and reasonable manner and with a reasonable

belief that the actions taken were in furtherance of quality

health care and warranted by the facts.                          The record provides no

evidence,         nor    even    a    plausible          indication,        that    defendants

failed       to     comport          with        these      norms      of     fairness         and

reasonableness.           Plaintiff failed to carry his burden to rebut

the presumption, or even create a material issue of fact.

       The    judicial          power       to    intervene       in    disputes        over     a

physician's clinical privileges is circumscribed.                             As this court

held   almost       thirty       years       ago       in   an   opinion     coincidentally

involving another physician whose privileges had been terminated

at Overlook, "[j]udicial review of hospital decisions regarding

admission to medical staff, extent of privileges and termination

is very limited."            Zoneraich v. Overlook Hosp., 212 N.J. Super.

83,    90    (App.       Div.),       certif.          denied,   107    N.J.       32   (1986).

"Hospital officials are vested with wide managerial discretion,

to be used to elevate hospital standards and to better medical

care."       Ibid. (citing Greisman v. Newcomb Hosp., 40 N.J. 389,

403 (1963)).            "So long as hospital decisions concerning medical

staff are reasonable, are consist[e]nt with the public interest,

and further the health care mission of the hospital, the courts

will not interfere."                 Ibid. (citing Desai v. St. Barnabus Med.

Ctr., 103 N.J. 79 (1986), and Belmar v. Cipolla, 96 N.J. 199,




                                                  32                                    A-5112-12T2
208   (1984)).          Although     Zoneraich     did      not     involve       the    HCQIA

(which, as it so happened, was enacted by Congress that same

year), these same general principles pertain in applying that

federal immunity.

      That      said,      our   courts    have        also      recognized        that    "a

physician is entitled to fundamentally fair procedures in a non-

profit hospital's consideration of staff membership, the extent

of privileges and termination."                  Id. at 91.           Accordingly, the

hospital seeking to suspend or oust a physician must provide

notice     to    the     affected      physician       of     the     charges       or     the

hospital's proposed action before an internal hearing.                                   Ibid.

"The tribunal must be fair and unbiased."                        Ibid.     The physician

has   a    qualified       right     to   retain       counsel       and    a     right    to

disclosure of certain information, "limited by recognition of

competing       rights     to    privilege      and    confidentiality."                 Ibid.

(emphasis       added)     (citing     Garrow     v.     Elizabeth         Gen.    Hosp.     &

Dispensary, 79 N.J. 549, 566-68 (1979)).

      As our Supreme Court noted in Garrow and we reiterated in

Zoneraich, "[j]udicial review of a hospital board action 'should

properly focus on the reasonableness of the action taken in

relation        to   the     several      interests         of      the     public,       the

[physician], and the hospital.'"                      Zoneraich, supra, 212 N.J.

Super. at 91 (emphasis added) (quoting Garrow, supra, 79 N.J. at




                                           33                                       A-5112-12T2
565).   Because of the internal nature of the hospital's private

hearing, "'[t]he proper standard upon review is not identical

with that customarily applied to administrative agencies, that

is, substantial competent credible evidence.'"              Ibid. (quoting

Garrow, supra, 79 N.J. at 565).             "'However, the record should

contain sufficient reliable evidence, even though of a hearsay

nature, to justify the result.'"            Ibid. (quoting Garrow, supra,

79 N.J. at 565).

    The HCQIA likewise affords deference to hospitals and their

representatives      when   they     make    these   difficult     decisions

concerning a physician's clinical privileges.           That deference is

manifested by the federal law's express presumption that the

immunity from damages applies unless the physician challenging

the hospital's adverse decision proves, by a preponderance of

the evidence, that the decision-makers took action without a

reasonable belief that it was in furtherance of quality health

care, failed to provide adequate notice and hearing procedures,

or took action without a reasonable belief based on the facts

known   after   a   reasonable     investigation.     See   42   U.S.C.A.     §

11112(a).

    The "reasonable belief" concepts in subsections (a)(1) and

(a)(4) of Section 11112 are objective standards.                 In fact, as

the House Committee report explains, the drafters of the federal




                                      34                             A-5112-12T2
immunity revised the bill to replace a "good faith" requirement

contained in an earlier version to "a more objective 'reasonable

belief'"     standard.           H.R.    Rep.       No.    99-903,     at    10     (1986),

reprinted in 1986 U.S.C.C.A.N. 6392-93.                           The Committee noted

"concerns that 'good faith' might be misinterpreted as requiring

only a test of the subjective state of mind of the physicians

conducting       the   professional           review       action."         Ibid.         The

Committee further declared its intention that the "reasonable

belief"    test    "will    be    satisfied         if    the     reviewers,      with    the

information available to them at the time of the professional

review action, would reasonably have concluded that their action

would restrict incompetent behavior or would protect patients."

Ibid.      The    Committee       also       expressed      its    "belief     that      this

standard     will      be   met         in    the     overwhelming          majority        of

professional       review     actions[.]"                 Ibid.     (emphasis       added).

Consistent with the drafters' intent, case law has repeatedly

treated the "reasonable belief" test under the statute as an

objective test.16


     16
       See, e.g., Cohlmia v. St. John Med. Ctr., 693 F.3d 1269,
1277 (10th Cir. 2012) ("The entity or persons that undertake the
professional review are immune under HCQIA as long as they
substantially comply with a list of objective standards set
forth in the Act."); Poliner, supra, 537 F.3d at 377 ("[T]he
HCQIA's 'reasonableness requirements were intended to create an
objective standard of performance, rather than a subjective good
faith standard.'"); Gordon, supra, 423 F.3d at 205 ("[I]mmunity
                                                     (continued)


                                              35                                    A-5112-12T2
      The HCQIA does not specify that a reviewing court must be

provided with transcripts of the hospital's internal hearing in

order to evaluate the adequacy of the hospital's proceedings.

Although we recognize that the trial court in Zoneraich was

apparently supplied with a record of the hospital's internal

proceedings, we do not construe the HCQIA to require that such

transcripts be furnished in every case.         The transcripts are not

vital where, as here, the other documents provided to the court

sufficiently establish that the physician was afforded a fair

and   reasonable   opportunity   to    be   heard,   and   show   that   the

hospital's ultimate decision was reasonably attained based upon

factual determinations generated from those internal hearings.

      N.J.S.A. 2A:84A-22.10 extends a similar form of immunity

protection for hospitals, peer reviewers, and decision-makers.


(continued)
will be judged by applying the objective standard regarding
whether the Hospital based its actions upon the reasonable
belief that they are in furtherance of quality healthcare.");
Meyers v. Columbia/HCA Healthcare Corp., 341 F.3d 461, 468 (6th
Cir. 2003) ("[The HCQIA] is an objective standard, rather than a
subjective   good  faith   requirement.");  Freilich   v.  Upper
Chesapeake Health, 313 F.3d 202, 212 (4th Cir. 2002) ("[T]he
HCQIA's objective reasonableness standard is a perfectly valid
guide for peer review bodies."); Singh, supra, 308 F.3d at 32
("[S]ister circuits have uniformly applied all the sections of §
11112(a) as objective standards"); Sugarbaker v. SSM Health
Care, 187 F.3d 853, 857 (8th Cir. 1999) ("[T]he reasonableness
requirements contained in section 11112(a) necessitate an
objective inquiry."), cert. denied, 528 U.S. 1137, 120 S. Ct.
980, 145 L. Ed. 2d 931 (2000).




                                  36                               A-5112-12T2
The    provision      broadly   covers   "any    person"       involved    in   such

review of a physician "for any action taken or recommendation

made    by    [that   person]   within    the    scope    of    [that     person's]

function" in that role.          N.J.S.A. 2A:84A-22.10(e).           This state-

law immunity applies, so long as "such action or recommendation

was taken or made without malice and in the reasonable belief

after        reasonable     investigation        that      such      action       or

recommendation was warranted upon the basis of facts disclosed."

N.J.S.A. 2A:84A-22.10(e) (emphasis added).17

       Although the term "malice" is not defined within N.J.S.A.

2A:84A-22.10,      the    conventional    meaning   of     that    term    suggests

that    the    sanctioned    physician    must    prove    that    the     hospital

defendants acted, in essence, either with ill will, without just

cause,18 or with a reckless disregard of the truth of the facts




17
   Unlike the federal statute, the New Jersey statute does not
contain an express presumption that the state-law immunity
controls and must be overcome by the plaintiff.
18
   In other contexts, malice "is defined as 'the intentional
doing of a wrongful act without just cause or excuse.'"
LoBiondo v. Schwartz, 199 N.J. 62, 93-94 (2009) (quoting Jobes
v. Evangelista, 369 N.J. Super. 384, 398 (App. Div.) (defining
malice in the context of a malicious prosecution case), certif.
denied, 180 N.J. 457 (2004)); see also Lamorte Burns & Co. v.
Walters, 167 N.J. 285, 306 (2001) (noting, in the context of
tortious interference, that "malice" means that "harm was
inflicted intentionally and without justification or excuse").




                                         37                                A-5112-12T2
regarding the physician's quality of care.19                       The "reasonable

belief" aspect of the New Jersey statute is also undefined.                             We

discern no basis to construe it any differently than the federal

immunity statute's usage of that term.

     We have no doubt that plaintiff was provided here with a

procedurally fair opportunity to be heard during the hospital's

internal    process.         He   was    given       multiple    opportunities          to

provide    written    submissions        to    the    hospital's     reviewers      and

decision-makers.        He    was    advised      before     the    formal    hearing

conducted by the hearing panel of the specific patient cases

that would be the subject of review.                  He was represented in the

internal    hearings    by    able      and    experienced      counsel    who     is    a

certified civil trial attorney.                  He apparently testified and

also presented his own expert witness.                      The findings of the

Investigating Committee and, thereafter, of the hearing panel,

were clearly detailed in writing.

     By    all   indications,       these      procedures    comported       with   the

HCQIA, the New Jersey statute, and case law.                       It is not as if

plaintiff    had     been    abruptly         summoned   before     the    Board        of

Trustees    without     warning         and     summarily       stripped      of    his

privileges for no articulated reasons.                    To the contrary, the


19
  See, e.g., DeAngelis v. Hill, 180 N.J. 1, 13 (2004) (applying
such a notion of "malice" in the context of a defamation case).



                                          38                                  A-5112-12T2
Board's final decision was the culmination of a lengthy and

elaborate process, one in which plaintiff had many opportunities

to present opposition and, presumably, to settle the matter on

the terms recommended in succession by the internal reviewers.

     Attempting to meet his burden to establish unreasonableness

or other improper conduct, plaintiff points to three aspects of

the chronology that he contends are indicia that defendants'

statutory    immunities     should         be       overcome.        He     specifically

alleges in his reply brief that:                 (1) defendants did not have a

reasonable    belief    that    their      actions        as   to    him   were   in    the

furtherance of quality health care; (2) they failed to provide

him with adequate notice of the first investigation and of the

initial referral to the outside reviewer; and (3) they lacked a

reasonable    belief    that    the   sanctions           recommended       and   imposed

were warranted.        As to that latter point, plaintiff emphasizes

that the sanction of revocation ultimately imposed by the Board

of   Trustees    was     harsher      than          the   conditional        suspension

recommended by both the MEC and the hearing panel.                            We concur

with the trial court that there is no merit to these contentions

of unfairness.

     The     record    provides       an        ample     basis      to    justify      the

hospital's    decision     to    pursue         a     review    of    the    care      that

plaintiff had provided          to several of his patients.                       Indeed,




                                           39                                     A-5112-12T2
those concerns were borne out by the adverse findings of the

outside reviewer, the Investigating Committee, and the hearing

panel.        The     documents       in   the     appendices        readily      show   that

defendants          had     a   reasonable         basis    to       believe      that    the

professional review and remedial action they took was pursued to

further       the    quality     of     health      care    being      provided     to    the

hospital's patients.

       In general, the applicable nexus to the "quality of health

care" will be satisfied under the HCQIA if the reviewing body,

based    on    the        information      before    it,    "would      reasonably       have

concluded that [its] action would restrict incompetent behavior

or would protect patients."                   Gordon, supra, 423 F.3d at 202

(quoting H.R. Rep. No. 99-903, at 10 (1986), reprinted in 1986

U.S.C.C.A.N. 6393).             As the Fifth Circuit has noted, the HCQIA

"does not require that the professional review result in an

actual improvement of the quality of health care, nor does it

require that the conclusions reached by the reviewers were in

fact    correct."            Poliner,      supra,     537    F.3d      at   378    (quoting

Imperial v. Suburban Hosp. Ass'n, Inc., 37 F.3d 1026, 1030 (4th

Cir. 1994)).          That observation is consistent with the fact that

Congress      prescribed,        under      42     U.S.C.A.      §    11112(c),     that     a

professional         review     board      may      immediately       suspend      clinical

privileges "where the failure to take such an action may result




                                              40                                    A-5112-12T2
in an imminent danger to the health of any individual."                           Ibid.

As the Third Circuit has observed, "the good or bad faith of the

reviewers [under the HCQIA] is irrelevant."                    Brader v. Allegheny

Gen. Hosp., 167 F.3d 832, 840 (3d Cir. 1999) ("Brader II").

      At the time its nearly year-long review process began, the

hospital      had      outstanding     concerns           regarding     plaintiff's

management     of   his    patients    and        his   documentation       of    their

treatment.        Indeed, as the outside reviewer concluded in his

report,    plaintiff      "either    did    not    understand     the   appropriate

steps in management or approached the situation too passively.

Neither      is     acceptable."                Moreover,      plaintiff      himself

acknowledged in his Second Amended Complaint that two of his

patients     "had   recognized      complications         associated       with   their

surgeries."       The fact that those patients eventually recovered

is   not   dispositive.        The    record       manifestly     shows     that    the

hospital's initiation of the review process was reasonable.

      We also reject plaintiff's next claim that defendants are

disentitled to immunity because they failed to provide him with

advance notice of the first steps of the outside review and

investigation.       As federal case law instructs, "nothing in the

[HCQIA] requires that a physician be permitted to participate in

the review of his [own patient's] care."                    Singh, supra, 308 F.3d

at   44    (citation    omitted).          The    HCQIA     applies   to    "discrete




                                           41                                 A-5112-12T2
decisions, not an on-going course of conduct."                               Wojewski v.

Rapid City Reg'l Hosp., Inc., 730 N.W.2d 626, 636 n.9 (S.D.

2007) (applying the HCQIA's immunities).

      Plaintiff's      third         argument,      contending        that    defendants

lacked a reasonable belief that the sanctions against him were

actually warranted, is similarly flawed.                      He contends that the

Board of Trustees "consistently and inexplicably disregarded"

the independent recommendations made regarding his performance.

In his view, the Board of Trustees did not possess a reasonable

belief that its decision to revoke his privileges was warranted.

The trial judge rejected this specious assertion, and so do we.

      Courts generally agree that "the reversal of a peer review

committee's      recommendation         of   an    adverse     professional       review

action by a higher level peer review panel does not indicate

that the initial recommendation was made without a reasonable

belief    that   the   recommendation             would    further     quality    health

care."    Singh, supra, 308 F.3d at 41 (citing Austin v. McNamara,

979   F.2d   728,   735       (9th    Cir.    1992)       (granting    immunity       in   a

situation     where       a     hospital's         judicial        review      committee

overturned a medical executive committee's recommendation of an

adverse   professional         review    action)).           The   converse      is   also

true.




                                             42                                  A-5112-12T2
      The mere fact that, as plaintiff's counsel's phrased it at

oral argument before us, the hospital decision-makers "ratcheted

up" the sanctions as the matter progressed does not signify that

the   Board   of   Trustees   or   the   other   hospital    decision-makers

acted    unreasonably   or    maliciously.       In   the   motion    arguments

below,    Judge    Grispin    aptly   analogized      the   present    case    to

attorney discipline cases, in which the Supreme Court sometimes

imposes a harsher ultimate sanction on a licensee                     than that

recommended by the Disciplinary Review Board.20                 The ultimate

authority to make privilege decisions within the hospital rests

with the Board of Trustees under the hospital's bylaws, and the

Board's selection of a harsher penalty in this case does not

mean that it acted maliciously or unreasonably.

      The Board had a reasonable cause for serious concern after

the hearing panel concluded from the testimony it heard that

plaintiff had made a false entry on a patient chart.                 Whether or

not that discrete finding is actually true is beyond our limited

20
   Although the Supreme Court "ordinarily place[s] great weight
on the recommendation of the Disciplinary Review Board," the
Court "[does not] not hesitate to impose a more severe sanction
than that recommended by the Board when circumstances warrant."
In re Kushner, 101 N.J. 397, 403 (1986) (citations omitted)
(finding the attorney's false certification a "grave misconduct"
and elevating the Disciplinary Review Board's recommended one-
year suspension to three years); see also In re Rosen, 88 N.J.
1, 3 (1981) (finding the attorney's subornation of perjury
"inexcusable and reprehensible" and elevating the Disciplinary
Review Board's proposed one-year suspension to three years).



                                      43                                A-5112-12T2
scope of review.              True or not, the finding alone reasonably

supported       the   Board     of     Trustees'       discretionary           decision      to

revoke plaintiff's privileges.                  Moreover, plaintiff apparently

bypassed numerous opportunities to resolve this matter with the

lesser    sanctions      recommended           by   the     MEC,      the   Investigating

Committee, and the hearing panel before the matter reached the

Board level.

                                           D.

      As a final matter, we consider plaintiff's argument that

the   trial     court    acted    prematurely          in      dismissing      his   lawsuit

without further discovery, particularly in denying his request

for   the     depositions       of     persons      involved       in    the     hospital's

review,     investigation,       and     decision-making              process.        We   are

satisfied that Judge Grispin did not misapply his discretion in

curtailing further discovery and in adjudicating the immunities

of defendants on the law and on the record supplied to him.

      Neither the HCQIA nor N.J.S.A. 2A:84A-22.10 specifies what

amount of discovery, if any, is warranted before a trial court

may   adjudicate        the    merits     of     the    immunities          invoked     by    a

hospital or individual defendants who participated in the review

of a physician's clinical privileges.                       We are mindful, however,

of the House Committee's guidance that the immunity question

under     the    HCQIA    may     be     resolved         at    "an     early    stage       of




                                           44                                        A-5112-12T2
litigation," and that court may do so "even though other issues

in the case remain to be resolved."                H.R. Rep. No. 99-903, at 12

(1986), reprinted in 1986 U.S.C.C.A.N. at 6394.

      The    federal   cases     display      no   consistent   pattern   in    the

level of discovery afforded to physicians who challenge hospital

defendants' assertions of HCQIA immunity.                  In some instances,

the federal courts have found that the plaintiff physician was

entitled to limited discovery of the peer review process.                       See,

e.g., Wahi v. Charleston Area Med. Ctr., Inc., 453 F. Supp. 2d

942, 948 (S.D. W. Va. 2006) (authorizing limited discovery, in

the   form   of   numerically-capped          interrogatories,      requests    for

admissions, and time-limited depositions), aff'd, 562 F.3d 599

(4th Cir. 2009), cert. denied, 558 U.S. 1158, 130 S. Ct. 1140,

175 L. Ed. 2d 991 (2010); Teasdale v. Marin Gen. Hosp., 138

F.R.D. 691, 694 (N.D. Cal. 1991) (authorizing the production of

peer review documents); see also Sugarbaker, supra, 187 F.3d at

857 (noting that the trial court had allowed depositions of

persons involved in the hospital's peer review process, where

the   reasonableness       of     that     process,     including      claims    of

antitrust     violations    by    the    defendants,      had   been    plausibly

challenged by plaintiff).




                                         45                               A-5112-12T2
       Conversely, in some instances, the HCQIA immunity issues

were resolved by the trial court at an early stage by granting a

motion to dismiss for failure to state a claim upon which relief

may be granted.          See, e.g., Straznicky v. Desert Springs Hosp.,

642 F. Supp. 2d 1238, 1240 (D. Nev. 2009) (granting dismissal of

plaintiff's damage claims, with prejudice, based solely on the

allegations of the plaintiff's complaint and related documents

that    the   plaintiff     physician    had       supplied    to    the     court   in

connection with his motion for a temporary restraining order);

Sobel v. United States, 571 F. Supp. 2d 1222, 1229 (D. Kan.

2008)    (granting   the     defendants'     motion     to    dismiss      under     the

HCQIA on the face of the pleadings, finding, among other things,

that the plaintiff physician had not asserted sufficient grounds

to overcome the statute's presumption of immunity).

       At the very least, the question of immunity under the HCQIA

may be resolved in appropriate cases at the summary judgment

stage.        As   the     Ninth   Circuit     has     observed,       because       the

"reasonableness"         requirements   of    42    U.S.C.A.    §    11112(a)      were

"intended     to   create     an   objective        standard,       rather    than     a

subjective standard [of judicial review], this inquiry may be

resolved on summary judgment."               Smith v. Ricks, 31 F.3d 1478,

1485 (9th Cir. 1994), cert. denied, 514 U.S. 1035, 115 S. Ct.

1400, 131 L. Ed. 2d 287 (1995).                    The question then becomes




                                        46                                    A-5112-12T2
whether a plaintiff has been afforded a sufficient opportunity

to obtain facts that might bear upon that objective assessment.

      The sparse case law under the analogous New Jersey immunity

statute is not instructive on the discovery question.                               As with

the   federal      statute,       it     is        logical     to        conclude   that      a

defendant's entitlement to immunity under N.J.S.A. 2A:84A-22.10

can at times be resolved on a dispositive motion.                            It is equally

sensible to conclude that a plaintiff's right to discovery on

the state-law immunity issues may be reasonably limited by a

trial judge.

      We   decline    to     adopt     a      per     se     rule    declaring        that    a

plaintiff    physician      who    has     lost       his    clinical       privileges       is

always entitled to depositions or other full-blown discovery in

litigating HCQIA immunity issues.                     Such a blanket right would

conflict    with    the     intent     of      Congress        to    permit     the    HCQIA

immunity to be adjudicated at an "early stage of litigation" in

appropriate cases.          Nor do we construe the New Jersey immunity

statute to create such an absolute right.

      In   some    cases,    an    unfettered            right      to    discovery    would

needlessly      entangle      hospitals            and      review        participants       in

depositions and other litigation activities, thereby diluting

the practical benefit of the immunity protection conferred upon

them by statute.          Although we are mindful that these statutes




                                              47                                    A-5112-12T2
provide hospital defendants with immunity from damages rather

than    immunity      from    suit,      we    also      appreciate      that   protracted

discovery easily can be costly and burdensome for the persons

and entities involved.              An appropriate balance can, and should,

be struck.

       We   therefore       adopt    a    case-by-case          approach      that   reposes

discretion       in   the    trial       court      to    determine      to   what       extent

discovery on the immunity issues should be permitted.                                      See,

e.g.,    R.   4:46-5        (granting         trial      judges    authority        to    defer

decisions on summary judgment motions where the party opposing

the    summary    judgment      motion        demonstrates,         by   affidavit,       that

additional discovery is needed to respond to the motion).                                  Such

a case-specific approach is consistent with the important role

that our civil trial judges routinely perform in balancing the

needs of litigants to obtain relevant information against the

often significant burdens and costs of the discovery process.

The exercise of wise judicial discretion in striking a proper

balance of those interests is particularly important where, as

here, immunity statutes are involved.

       On   appeal,     we    generally         will      not     second-guess       a    trial

judge's exercise of discretion in discovery matters unless the

appellant     demonstrates            that       such      discretion         was    abused.

Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371




                                               48                                    A-5112-12T2
(2011); Bender v. Adelson, 187 N.J. 411, 428 (2006).                         We must

review    the   trial    court's       denial   of   additional       discovery     to

plaintiff here through that prism of deference.

       Here, plaintiff already received at least some amount of

paper discovery in the Chancery Division action.                  Plaintiff and

his attorney actively participated in the two hearings before

the hospital's hearing panel.              He now demands depositions, on

the conjectural supposition that such adversarial questioning of

the    hospital's       representatives         might   reveal    a     proverbial

"smoking gun" reflecting malice or some form of unreasonable

conduct on their part.

       We concur with Judge Grispin that, given the particular

context of this case, there is no need to allow such depositions

to proceed when defendants' entitlement to immunity is so clear.

Even if depositions proceeded, the individual deponents (or the

hospital itself) might assert absolute or qualified privileges

from     disclosure     under    potentially-applicable          confidentiality

laws, and might decline to answer some or all of plaintiff's

queries.     See, e.g., C.A. v. Bentolila, 219 N.J. 449, 451 (2014)

(involving      privileges      from    disclosure      under   the    New     Jersey

Patient Safety Act);21 Christy v. Salem, 366 N.J. Super. 535,


21
   Although defendants have cited to the Patient Safety Act,
N.J.S.A.   26:2H-12.23 to   -12.25, we  make   no  conclusive
                                                  (continued)


                                          49                                 A-5112-12T2
541-45 (App. Div. 2004) (recognizing a qualified privilege from

disclosure under a hospital's peer review privilege).                        As the

Supreme Court recently underscored in C.A., there are strong

public policies recognized by the Legislature in encouraging the

free flow of evaluative communications within a hospital made in

an effort to improve future patient care.                C.A., supra, 219 N.J.

at 473.     We need not and do not resolve the applicability of

these   confidentiality       laws    and    public    policies,      but     simply

acknowledge    that    they    might    well     limit      the    scope    of    any

additional discovery if it had been allowed.

       Other than his vague suppositions that his circumstances

were      unfairly     considered       by      the      hospital       and       its

representatives, plaintiff has not set forth a proffer, in a

sworn   affidavit     pursuant   to    Rule    4:46-5     or      otherwise,     that

specifies what information he would intend to elicit from the

hospital's representatives at their depositions.                     If plaintiff

wants to ask them why they did what they did, the reasons are

self-evident    from   the    written       findings   of    the    Investigating



(continued)
determination that the Act applies to the communications in this
case. See N.J.A.C. 8:43E-10.9(b)(1) (limiting the protection of
the Patient Safety Act to documents, materials, and information
developed by a health care facility "exclusively" during the
process of self-critical analysis); see also, C.A., supra, 219
N.J. at 467-68. At the very least, the potential applicability
of that statute would no doubt complicate the discovery process.



                                       50                                   A-5112-12T2
Committee, the hearing panel, and the Board of Trustees —— all

of which he already has in his possession.

       In    addition,        this     is     not     a     case     in     which         antitrust

violations have been alleged, which has been true in some of the

federal      cases     where    more        extensive        discovery       was      permitted.

See, e.g., Brader v. Allegheny Gen. Hosp. 64 F.3d 869, 876 (3d

Cir.    1995)        ("Brader        I")     (reversing            the     district         court's

dismissal of the plaintiff's complaint, in part, because "the

adequacy of a physician's contentions regarding the effect on

competition      is     typically      resolved            after    discovery,            either   on

summary judgment or after trial"); see also Sugarbaker, supra,

187 F.3d at 857 (likewise involving discovery completed of a

case    involving        antitrust          claims).               Where     such         colorable

antitrust claims are present, the factual and legal complexity

of the case may be greater and the justification for plenary

discovery may be heightened.

       Plaintiff's complaint, which he has amended multiple times,

makes       several    conclusory           allegations        that        defendants          acted

"maliciously"         and     "arbitrarily"           in    taking       away       his    clinical

privileges.           As Judge Grispin correctly recognized, the mere

inclusion       of     such     normative         adverbs          within       a    physician's

complaint      does     not    justify       a    free-wheeling            discovery        mission




                                                 51                                         A-5112-12T2
delving into a hospital's internal review and investigation of

that physician's poor performance.

    The trial court reasonably concluded that plaintiff already

had been provided with enough information to attempt to surmount

the statutory immunities.       Because the court did not abuse its

discretion,   we   sustain      its     sensible       decision   to   curtail

additional    discovery   and     to        disallow   depositions     of    the

hospital's representatives.

    Affirmed.




                                       52                              A-5112-12T2
