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Date: 11-13-2017

Case Style:

Camden-Clark Memorial Hospital Corporation v. Tuan Nguyen, M.D.

Supreme Court of Appeals - Charleston, West Virginia

Case Number: 16-0834

Judge: Workman

Court: Supreme Court of Appeals for West Virginia on appeal from the Circuit Court, Wood County

Plaintiff's Attorney: Tom Hurney and Laurie Miler for Camden-Clark Memorial Hospital Corporation

Defendant's Attorney: Tom Scarr, Steve Snyder and Sarah Walling for Nguyen

Description: Respondent Dr. Tuan Nguyen (“Physician”) filed a third-party complaint
against Petitioner Camden-Clark Memorial Hospital Corporation (the “Hospital”) and
alleged it discriminated and retaliated against him for reporting patient safety concerns;
he alleged violations of the West Virginia Patient Safety Act (the “Act”),1 retaliatory
discharge, and intentional infliction of emotional distress. The Hospital filed a motion to
dismiss Physician’s claims under Rule 12(b)(6) of the West Virginia Rules of Civil
Procedure. The Hospital contended that because Physician’s claims are linked to its
decision to not reappoint him to its medical staff, it enjoyed qualified immunity as
afforded by this Court in Mahmoodian v. United Hospital Center, Inc., 185 W.Va. 59,
404 S.E.2d 750 (1991). The circuit court denied the Hospital’s motion, and it appealed.
This Court finds that Physician’s claims are distinguishable from
Mahmoodian, and sufficient to survive the Hospital’s Rule 12(b)(6) motion. We therefore
affirm the order of the circuit court.
In 2008, Physician completed his residency and earned his license to
practice medicine in West Virginia. Physician was employed by Camden-Clark Physician
Corporation (the “Corporation”) as a general surgeon from 2008 until he was terminated
in 2013. The Corporation operates a physicians’ group wholly owned by Camden-Clark
1 See W.Va. Code §§ 16-39-1 to -7 (2016).
Health Services, Inc. (“CCHS”). Physician practiced medicine at the Hospital, which
does business as Camden Clark Medical Center in Parkersburg, West Virginia. These
corporate entities are closely related and governed by the same individuals.2
For much of his employment, Physician was the only general surgeon at the
Hospital. He maintained a demanding schedule with his own patients, and was also on
call for other physicians, including a vascular surgeon. Physician alleges that this
arrangement troubled him because he did not have deep-rooted expertise in vascular
surgery and that he repeatedly expressed patient safety concerns about this situation to
administrators. Physician also alleges that in addition to raising his own concerns, he
supported Dr. Roman Petrov, a thoracic surgeon, who clashed with administrators over
patient safety concerns including allegations of inadequate staffing, contaminated
instruments, and insufficient equipment and supplies.
Pursuant to his employment agreement with the Corporation, Physician had
to maintain appointment to the medical staff of the Hospital.3 It is undisputed that one of
2 David McClure is the President of both the Hospital and CCHS; Kathy Eddy is
the President of the Corporation, and the Secretary/Director of both the Hospital and
CCHS; Todd A. Kruger is Vice-President for both the Hospital and CCHS, and General
Counsel for the Corporation. Michael King was President and CEO of CCHS in 2013,
when he directed Rick Hamilton, Executive Director of the Corporation, to terminate
Physician’s employment with the Corporation.
3 Under the terms of his employment agreement, Physician was required to “meet
and continue to meet the Eligibility Criteria and other requirements for active medical
staff appointment and re-appointment set forth in the Medical Staff Bylaws, Credentials
(continued . . .)
the eligibility criteria for Physician’s appointment to the medical staff was that he
become board certified in his primary area of practice within five years from the date of
completion of his residency.4 Thus, Physician faced a June 30, 2013, deadline to become
board certified, although the Hospital’s Credentials Policy also provided a procedure
whereby the Hospital could waive this requirement.
Board certification is a two-part process; Physician passed the Qualifying
Examination (the written portion) but had not yet taken the Certifying Examination (the
oral portion) when he and the Corporation were negotiating his most recent employment
agreement in 2013. Administrators with the Corporation told Physician that another
general surgeon would be added to the Hospital’s staff. With this understanding,
Policy and/or other policies, procedures and rules and regulations of the Hospital and its
medical staff from time to time.”
4 The Hospital’s medical staff bylaws govern the eligibility criteria for
appointment. The bylaws require that physicians be
board certified in their primary area of practice at the
Hospital. Those applicants who are not board certified at the
time of application but who have completed their residency or
fellowship training within the last five years will be eligible
for Medical Staff appointment. However, in order to remain
eligible, those applicants must achieve board certification in
their primary area of practice within five (5) years from the
date of completion of their residency or fellowship training.
(This requirement is applicable only to those individuals for
initial staff appointment after the date of adoption of this
Policy. All individuals appointed previously will be governed
by the board certification requirements in effect at the time of
their appointments[.]).
Physician planned to take some time off to complete his board certification. Under the
new agreement, effective July 1, 2013, Physician received a pay raise, and was permitted
to practice on the weekends at Marietta Memorial Hospital in Ohio. The new
employment agreement became effective one day after the fifth anniversary deadline for
Physician to become board certified.
In spite of his new employment agreement with the Corporation, the
Hospital declined to review Physician’s application for reappointment to its medical staff
in the fall of 2013, purportedly because he failed to obtain board certification. On
October 22, 2013, Physician sent a letter to the Hospital’s Medical Executive Committee
requesting “temporary privilege” at the Hospital. Physician indicated that he was
scheduled to take the certification exam in March of 2014.
Then, just months after it renewed his employment agreement, the
Corporation terminated Physician in November 2013, purportedly for his failure to
maintain membership on the medical staff of the Hospital. Physician alleges that when
the Corporation’s administrator terminated him, he told Physician that the Corporation
would not seek to enforce the non-competition portion of their employment agreement or
seek reimbursement for his “tail coverage,” a policy of medical professional liability
Following his termination, Physician began working with a physicians’
group at Marietta Memorial Hospital. In March of 2014, the American Board of Surgery
certified Physician in surgery; this board certification was less than 180 days after the
Corporation gave notice of its intent to terminate his employment contract.
The Corporation initiated the instant action in October 2014 when it filed a
claim against Physician the year after his termination. The Corporation alleged Physician
breached the employment agreement when he failed to purchase a tail policy of medical
professional liability insurance. The Corporation sought $67,022 in damages, the cost it
incurred by purchasing this policy.
Physician answered the Corporation’s complaint and asserted that it was
estopped from pursuing its breach of contract claim because administrators told him the
Corporation would not seek any payments from Physician, including the payment of the
tail coverage. Physician stated that by entering into the 2013 employment agreement with
full awareness of his board certification status, the Corporation waived any requirement
that he achieve board certification within five years of his initial hire date. Physician also
filed five counterclaims including breach of contract, breach of the covenant of good
faith, violations of the Act, and retaliatory discharge, as well as a claim for intentional
infliction of emotional distress. Physician alleged that the Corporation’s stated reason for
his termination was a pretext for retaliation; soon after entering into this employment
agreement, he “incurred the wrath” of the Corporation and the Hospital administrators
“due to his expressions of concern regarding patient safety and his friendship with and
support of Dr. Roman Petrov.”5
Physician amended his counterclaim against the Corporation to include a
third-party complaint against the Hospital, and its parent corporation CCHS, which is the
subject of this appeal.6 He filed claims against the Hospital for violations of the Act,
retaliatory discharge, and intentional infliction of emotional distress. In his pleadings,
Physician referred to the Corporation, the Hospital, and CCHS collectively as “Camden-
Clark” “[b]ecause of their shared administration, facilities, support staff and inextricably
intertwined operations[.]”
Physician alleged that he did not avail himself of appropriate administrative
remedies because the Camden-Clark entities represented that he would not be required to
pay for tail coverage and would be relieved of any obligation under a noncompetition
clause. He also alleged the Corporation, the Hospital and/or CCHS breached the
5 Dr. Petrov also lost staffing privileges at the Hospital in the fall of 2013, and that
matter is in litigation. In his brief before this Court, Physician references a deposition
taken in Dr. Petrov’s lawsuit. Specifically, he refers to the testimony of Rick Hamilton,
former Executive Director of the Corporation, wherein Mr. Hamilton discussed the
circumstances surrounding the decision to terminate Physician from the Corporation and
deny his staffing privileges at the Hospital. In its reply brief, the Hospital did not object
to these references. Nevertheless, this Court does not rely on this information to reach our
resolution of this appeal because our review is limited to the sufficiency of Physician’s
third-party complaint.
6 CCHS is not a party to this appeal.
employment agreement when it deprived him of the peer review process described in the
employment agreement.
In May of 2016, Physician filed a motion to compel discovery after the
Corporation, the Hospital, and CCHS refused to permit any depositions of their
employees on the basis of qualified privilege.
In response, the Hospital filed a Rule 12(b)(6) motion to dismiss
Physician’s claims and/or for summary judgment. The Hospital argued that because
Physician’s claims touch on the issue of its criteria for eligibility for appointment to its
medical staff, it must be afforded qualified immunity pursuant to Mahmoodian.7 As such,
the Hospital maintained that the circuit court should only review: 1) whether the
Hospital’s medical staff bylaws and credentials policy provided for a fair procedure; and
2) whether that procedure was followed. The Hospital claimed it never reviewed
Physician’s application because it was undisputed that he failed to meet the threshold
eligibility criteria.
In June of 2016, the circuit court held a hearing on the parties’ motions. It
denied the Hospital’s motion to dismiss and found that Physician’s claims were not
prohibited by Mahmoodian. The court further held that Physician had “the right to
7 See infra section III B of this opinion for a discussion of syllabus point one of
Mahmoodian, 185 W.Va. at 60, 404 S.E.2d at 751.
propound discovery, to obtain full responses to his discovery requests, and to depose
witnesses who may have relevant knowledge, subject to limitations set out by law.”
Moreover, it held that “[r]egarding the issue of interrelatedness of the Camden-Clark
parties, this Court has already ruled that the doctor is to be given an opportunity to
explore the possibility that those are not separate entities, but are all interrelated.” The
circuit court deferred ruling on the Hospital’s motion for summary judgment.8
It is important to emphasize that this is not an administrative appeal
following an evidentiary hearing where a physician is claiming that violations of fair
procedure or lack of substantial evidence requires a court to set aside the hospital’s
decision to deny reappointment of staffing privileges. If it were such a case, our standard
8 Consequently, the circuit court did not reach the Hospital’s argument that
Physician released it from all liability for actions involving credentialing decisions when
he signed a release of information form and consented to the Hospital’s bylaws. The
Hospital acknowledged below that the circuit court had to look beyond the pleadings to
rule on this issue.
Before this Court, the Hospital raised this issue of waiver as its second assignment
of error, although it devotes only a page and a half to this argument. We decline to
address it as our review at this stage of the proceeding is limited to Physician’s thirdparty
complaint. “A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a
complaint, and an inquiry as to the legal sufficiency is essentially limited to the content of
the complaint.” State v. Bayer Corp., 32 So.3d 496, 502 (Miss. 2010) (quotation and
citation omitted).
of review would be highly favorable to the Hospital.9 But Physician, a doctor who
performed surgeries at the hospital for five years and was never the subject of
disciplinary action, did not receive a hearing before the Hospital denied his application
for reappointment to its medical staff.
This appeal arrives here by way of an order denying the Hospital’s Rule
12(b)(6) motion to dismiss Physician’s lawsuit. In reviewing such motions, our inquiry is
limited to whether Physician has put forth claims that, if proven, are factually and legally
sufficient to sustain a favorable judgment.10 As no real discovery has taken place, we
look to Physician’s pleadings and resolve conflicts and inferences in the record in favor
of him.
We examine de novo the denial of a motion to dismiss under Rule 12(b)(6)
of the West Virginia Rules of Civil Procedure. Citibank, N.A. v. Perry, 238 W.Va. 662,
664, 797 S.E.2d 803, 805 (2016).
9 See Mahmoodian, 185 W.Va. at 65, 404 S.E.2d at 756 (discussing limited scope
of judicial review when medical staff challenges private hospital’s disciplinary
10 Our review of the case is limited to the sufficiency of the complaint; thus, we
must accept as true all well-pled facts and must draw all reasonable inferences in favor of
Physician. State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770,
776 n.7, 461 S.E.2d 516, 522 n.7 (1995).
In order to defeat a motion to dismiss, a plaintiff must allege facts that, if
accepted as true, are sufficient to state a claim. This Court has previously stated that
“[t]he purpose of a motion under Rule 12(b)(6) of the West Virginia Rules of Civil
Procedure is to test the sufficiency of the complaint. A trial court considering a motion to
dismiss under Rule 12(b)(6) must liberally construe the complaint so as to do substantial
justice.” Cantley v. Lincoln Cty. Comm’n, 221 W.Va. 468, 470, 655 S.E.2d 490, 492
(2007). “Since the preference is to decide cases on their merits, courts presented with a
motion to dismiss for failure to state a claim construe the complaint in the light most
favorable to the plaintiff, taking all allegations as true.” Sedlock v. Moyle, 222 W.Va.
547, 550, 668 S.E.2d 176, 179 (2008). Thus, in syllabus point three of Chapman v. Kane
Transfer Co., 160 W.Va. 530, 236 S.E.2d 207 (1977), this Court held that “[t]he trial
court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not
dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S.
41, 45-46, 78 S.Ct. 99, 2 L.Ed. 80 (1957).”
The Hospital contends that the circuit court erred in denying its motion to
dismiss, or in the alternative, in not granting it summary judgment, because under
Mahmoodian, it is immune from review of its medical staff appointment decisions
beyond a review of whether the Hospital was in compliance with its bylaws. Physician
counters that the limited immunity afforded by Mahmoodian does not extend to shield the
Hospital from illegal actions, such as retaliatory discharge in violation of the Act. In
order to put these arguments in context, we begin by summarizing Physician’s claims.
A. Physician’s Claims
Physician alleges three causes of action against the Hospital. He first
alleges that the Hospital violated the Act. See W.Va. Code §§ 16-39-1 to -7. The
Legislative purpose of the Act is to “protect patients by providing protections for those
health care workers with whom the patient has the most direct contact.” W.Va. Code §
16-39-2(b).11 The Act provides that:
11 West Virginia Code § 16-39-2 reads in its entirety as follows:
(a) The Legislature finds that:
(1) Patients receiving medical care in this state need
stable and consistent care from those providing health care
services at every level;
(2) Dedicated health care workers are instrumental in
providing quality patient care services and ensuring that the
patient’s best interests are at all times protected;
(3) During the course of caring for their patients, many
health care workers often observe instances of waste or
wrongdoing that detrimentally affect both the patients and the
health care facility;
(4) Health care workers who observe such matters are
often reluctant to report the waste or wrongdoing to the
administrator of the health care facility or other appropriate
authority for fear of retaliatory or discriminatory treatment
through termination, demotion, reduction of time, wages or
benefits or other such actions; and
(5) The quality of available health care will suffer in
this state if dedicated health care workers are discouraged
(continued . . .)
(a) No person may retaliate or discriminate in any
manner against any health care worker because the worker, or
any person acting on behalf of the worker:
(1) Makes a good faith report, or is about to report,
verbally or in writing, to the health care entity or appropriate
authority an instance of wrongdoing or waste[;]
(2) Advocated on behalf of a patient or patients with
respect to the care, services or conditions of a health care
(3) Initiated, cooperated or otherwise participated in
any investigation or proceeding of any governmental entity
relating to the care, services or conditions of a health care
Id. § 16-39-4.
Physician alleges that the Hospital violated the Act when it discriminated
and retaliated against him in response to his good faith reports “on behalf of patients with
respect to the care, services and conditions of Camden-Clark’s health care facilities.”
There is no dispute that the Hospital is a health care entity12 and Physician is a health care
from reporting instances of waste or wrongdoing that affect
the quality of health care delivery in this state.
(b) Consequently, the Legislature intends by enacting this
article to protect patients by providing protections for those
health care workers with whom the patient has the most direct
12 See W.Va. Code § 16-39-3 (6) (“‘Health care entity’ includes a health care
facility, such as a hospital, clinic, nursing facility or other provider of health care
services.”) (emphasis added).
worker13 within the meaning of the Act. The Act provides that “[a]ny health care worker
who believes that he or she has been retaliated or discriminated against” may file a civil
action. Id. § 16-39-6(a). And a court, in rendering a judgment for a plaintiff in an action
brought under the Act, can award a variety of remedies including reinstatement, actual
damages, as well as reasonable attorneys’ fees and costs. Id. § 16-39-6(b).
As his second cause of action, Physician alleged retaliatory discharge. In
support of this count, Physician alleged that the Corporation, the Hospital, and CCHS
acted in full collaboration and terminated his employment in retaliation for his complaints
about patient safety and support of Dr. Petrov’s complaints of patient safety.14 To identify
a substantial public policy, we look “to established precepts in [the State’s] constitution,
13 See Id. § 16-39-3 (7) (“‘Health care worker’ means a person who provides direct
patient care to patients of a health care entity and who is an employee of the health care
entity, a subcontractor or independent contractor for the health care entity, or an
employee of such subcontractor or independent contractor. The term includes, but is not
limited to, a nurse, nurse’s aide, laboratory technician, physician, intern, resident,
physician assistant, physical therapist or other such person who provides direct patient
care.”) (emphasis added).
14 This Court held in the syllabus of Harless v. First National Bank in Fairmont,
162 W.Va. 116, 246 S.E.2d 270 (1978), that
[t]he rule that an employer has an absolute right to
discharge an at will employee must be tempered by the
principle that where the employer’s motivation for the
discharge is to contravene some substantial public policy
principle, then the employer may be liable to the employee
for damages occasioned by this discharge.
Accord Syl. Pt. 2, Stanley v. Sewell Coal Co., 169 W.Va. 72, 285 S.E.2d 679 (1981).
legislative enactments, legislatively approved regulations, and judicial opinions.”
Birthisel v. Tri-Cities Health Servs. Corp., 188 W.Va. 371, 377, 424 S.E.2d 606, 612
(1992). Physician relied on the substantial public policy articulated in the Act. See W.Va.
Code § 16-39-2.
In his third cause of action, Physician alleged intentional infliction of
emotional distress.15 Included within the averments supporting this count were that the
conduct of the Corporation, the Hospital, and CCHS towards Physician “was atrocious,
intolerable, and so extreme and outrageous as to exceed the bounds of decency.”
15 When analyzing an intentional infliction of emotional distress claim, also
referred to as a tort of outrage claim, in the employment context, this Court has stated that
[t]he prevailing rule in distinguishing a wrongful
discharge claim from an outrage claim is this: when the
employee’s distress results from the fact of his discharge—
e.g., the embarrassment and financial loss stemming from the
plaintiff’s firing—rather than from any improper conduct on
the part of the employer in effecting the discharge, then no
claim for intentional infliction of emotional distress can
attach. When, however, the employee’s distress results from
the outrageous manner by which the employer effected the
discharge, the employee may recover under the tort of
outrage. In other words, the wrongful discharge action
depends solely on the validity of the employer’s motivation or
reason for the discharge. Therefore, any other conduct that
surrounds the dismissal must be weighed to determine
whether the employer’s manner of effecting the discharge
was outrageous.
Syl. Pt. 2, Dzinglski v. Weirton Steel Corp., 191 W.Va. 278, 445 S.E.2d 219 (1994)
holding modified by Tudor v. Charleston Area Med. Ctr., Inc., 203 W.Va. 111, 506
S.E.2d 554 (1997).
Moreover, he alleged that the corporate entities “acted with the intent to inflict emotional
distress upon” him “or acted recklessly when it was certain or substantially certain
emotional distress would result from their conduct.”
With this backdrop, we turn to the Hospital’s assignment of error.
B. Hospital’s Rule 12(b)(6) Motion
The Hospital asserts that it enjoys qualified immunity from all of
Physician’s claims. It submits that our review here is razor-thin, one that begins—and
ends—with our 1991 decision in Mahmoodian. We disagree.
In Mahmoodian, a private hospital revoked an obstetrician’s staffing
privileges for his pattern of disruptive and unprofessional behavior following an
evidentiary hearing with full appellate review by the hospital’s board of directors. 185
W.Va. at 62, 404 S.E.2d at 753. He brought a civil action against the hospital and the
court granted a permanent injunction that required the hospital to reinstate his staff
privileges. The private hospital appealed and this Court reversed. In this context, we held
that a court may review only whether a hospital’s medical staff bylaws presented clearly
articulated requirements for medical staff appointment, and whether the hospital’s refusal
to appoint was consistent with those bylaws. See Syl. Pt. 1, Mahmoodian, 185 W.Va. at
60, 404 S.E.2d at 751 (“The decision of a private hospital to revoke, suspend, restrict or
to refuse to renew the staff appointment or clinical privileges of a medical staff member
is subject to limited judicial review to ensure that there was substantial compliance with
the hospital’s medical staff bylaws governing such a decision, as well as to ensure that
the medical staff bylaws afford basic notice and fair hearing procedures, including an
impartial tribunal.”).
This Court articulated sound public policy reasons behind our decision in
Mahmoodian wherein we conferred limited judicial review when an individual brings suit
challenging a private hospital’s medical staffing decisions.16 We recognized that courts
16 We summarized those reasons as follows:
The judicial reluctance to review the medical staffing
decisions of private hospitals, by way of injunction,
declaratory judgment or otherwise, reflects the general
unwillingness of courts to substitute their judgment on the
merits for the professional judgment of medical and hospital
officials with superior qualifications to make such decisions.
Furthermore, a private hospital’s actions do not constitute
state action and, therefore, are not subject to scrutiny for
compliance with procedural “due process,” which is
constitutionally required when there is state action. However,
there are basic, common-law procedural protections which
must be accorded a medical staff member by a private
hospital in a disciplinary proceeding which could seriously
affect his or her ability to practice medicine. Such basic
procedural protections include notice of the charges and a fair
hearing before an impartial tribunal. If a private hospital’s
medical staff bylaws provide these basic procedural
protections, and if the bylaws’ procedures are followed
substantially in the particular disciplinary proceeding, a court
usually will not interfere with the medical peers’
recommendation and the hospital’s exercise of discretion on
the merits.
(continued . . .)
must be reluctant to interfere in decisions that are grounded in hospitals’ areas of
expertise. Those compelling interests are largely marginalized, however, when a health
care worker alleges retaliatory or discriminatory conduct prohibited by statute under a
legislative policy that seeks to safeguard the health and safety of hospital patients. See
W.Va. Code § 16-39-2.
In this case, the Hospital mischaracterizes the nature of Physician’s claims
and asks us to ignore the allegations of retaliation for patient safety complaints. To accept
the Hospital’s argument, this Court would have to disregard the gravamen of Physician’s
claims and don blinders to focus only on the Hospital’s decision to deny Physician’s
reappointment application due to his credentials. However, Physician did not file suit
challenging the Hospital’s medical staff reappointment standards. In fact, he has never
argued that the Hospital could not require that its surgeons be board certified. Rather,
Physician contends that the Hospital cannot ignore its credentialing requirements when it
suits its purposes, and then reverse course and revoke his staffing privileges in retaliation
for his patient safety complaints. Therefore, at this stage of the proceeding, Mahmoodian
is readily distinguishable from the instant matter.
Mahmoodian, 185 W.Va. at 65, 404 S.E.2d at 756.
Likewise, in Khan v. Suburban Community Hospital, 340 N.E.2d 398 (Ohio
1976), the court stated that when the board of trustees of a private, nonprofit hospital
adopts reasonable criteria for the privilege of practicing major surgery in the hospital, a
court should not substitute its evaluation of such matters. The court stated sharply that
“judges should not be flaunting the staff of Mercury and telling physicians how to run
their profession.” Id. at 402.
We therefore reject the Hospital’s proposition that any tangential
involvement of a hospital’s staffing decision somehow forecloses judicial intervention in
the types of disputes normally dealt with in the courts. Although courts have limited
jurisdiction “to review purely administrative decisions of private hospitals, the courts of
this state do have jurisdiction to hear cases alleging torts, breach of contract, violation of
hospital bylaws or other actions that contravene public policy.” Clark v. Columbia/HCA
Info. Servs., Inc., 25 P.3d 215, 220 (Nev. 2001).
A recent decision of the Supreme Court of California illustrates this
principle. In Fahlen v. Sutter Central Valley Hospitals, 318 P.3d 833 (Cal. 2014), a
physician brought a statutory health care facility whistleblower claim against a hospital
after it terminated his staff privileges; he alleged the hospital’s action constituted
retaliation for his reports of substandard performance by hospital nurses. The court
permitted the suit to proceed and held
that when a physician claims, under [the statute]17, that a
hospital’s quasi-judicial decision to restrict or terminate his or
17 The health care facility whistleblower statute in effect at the time Fahlen was
decided declared
“the public policy of the State of California to encourage
patients, nurses, members of the medical staff, and other
health care workers to notify government entities of suspected
unsafe patient care and conditions.” . . . To this end, the
statute provides that “[n]o health care facility shall
discriminate or retaliate, in any manner, against any patient,
employee, member of the medical staff, or any other health
care worker . . . because that person has . . . [p]resented a
(continued . . .)
her staff privileges was itself a means of retaliating against
the physician “because” he or she reported concerns about the
treatment of patients, the physician need not first seek and
obtain a mandamus judgment setting aside the hospital’s
decision before pursuing a statutory claim for relief. [The
statute] declares a policy of encouraging workers in a health
care facility, including members of a hospital’s medical staff,
to report unsafe patient care. The statute implements this
policy by forbidding a health care facility to retaliate or
discriminate “in any manner” against such a worker
“because” he or she engaged in such whistleblower action. . .
. It entitles the worker to prove a statutory violation, and to
obtain appropriate relief, in a civil suit before a judicial fact
Id. at 835 (citations omitted and footnote added).
In the same fashion, our Act endeavors to safeguard the health and safety of
patients. It provides, without qualification, that a health care worker who has suffered
retaliation or discrimination “in any manner” for making good faith reports about patient
safety issues is entitled to institute a civil action for relief. W.Va. Code § 16-39-4.
Therefore, the West Virginia Legislature has made clear that courts should not ignore
allegations that a hospital’s actions contravene this significant public policy simply
because credentialing standards or staffing privileges are implicated. There is therefore
no basis to conclude that the Act precludes a hospital physician from bringing a civil suit
grievance, complaint, or report to the facility, to an entity or
agency responsible for accrediting or evaluating the facility,
or the medical staff of the facility, or to any other
governmental entity.”
Fahlen, 318 P.3d at 839 (citing Cal. Health & Safety Code § 1278.5 (2008)).
claiming that the hospital’s decision regarding his or her medical staff appointment was
in retaliation for good faith reports of patient safety complaints.
The broad discretion afforded hospitals in their medical staff selection
process under Mahmoodian must be tempered with the protections afforded health care
workers in our Act, in a manner that serves the common aim of both schemes—the safe
and competent care of hospital patients. Thus, it is not necessary to reject the rationale of
Mahmoodian to affirm the circuit court’s decision.
Therefore, Physician’s statutory cause of action under the Act and his other
claims may proceed as they stand in stark contrast to the plaintiff’s complaints about a
hospital’s disciplinary proceeding in Mahmoodian.18 The Hospital’s wholesale reliance
on Mahmoodian is therefore not enough for this Court to dismiss Physician’s claims at
this stage of the litigation.
18 State ex rel. Sams v. Ohio Valley General Hospital Association, 149 W.Va. 229,
140 S.E.2d 457 (1965), is also patently dissimilar. In Sams, a physician filed suit after he
was unsuccessful in his initial attempt to gain staffing privileges at a private hospital; he
sought an order compelling the hospital to grant him privileges. This Court refused to
become entangled in the controversy, and held in syllabus point four that: “The governing
authorities of a private hospital, in the exercise of their discretion, have the absolute right
to exclude licensed physicians from its medical staff and such action is not subject to
judicial review.” Id. at 229, 140 S.E.2d at 458. The physician in Sams had not worked at
the hospital, so he obviously had not alleged that he was retaliated against for making
patient safety complaints.
Accordingly, we find Physician sufficiently pled his causes of action to
survive a motion to dismiss made under Rule 12(b)(6). This Court has previously stated
that motions to dismiss are generally viewed with disfavor because the complaint is to be
construed in the light most favorable to the plaintiff and its allegations are to be taken as
true. Sticklen v. Kittle, 168 W.Va. 147, 163-64, 287 S.E.2d 148, 157 (1981). Obviously,
Physician must still develop sufficient facts in order to ultimately prevail on his claims,
but it does not appear beyond doubt to the Court at this stage of the proceeding that he
can prove no set of facts in support of his claims which would entitle him to relief. Syl.
Pt. 3, Chapman, 160 W.Va. at 530, 236 S.E.2d at 207.

Outcome: We affirm the August 4, 2016, order of the Circuit Court of Wood County.

Plaintiff's Experts:

Defendant's Experts:


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