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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Brandner v. Bateman (5/15/2015) sp-7010

Brandner v. Bateman (5/15/2015) sp-7010

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                    

         corrections@akcourts.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



MICHAEL D. BRANDNER, M.D.,                               )  

                                                           )   Supreme Court No. S-15513  

                           Appellant,                    )  

                                                         )     Superior Court No. 3AN-13-07697 CI  

         v.                                              ) 

                                                          )    O P I N I O N  

TIMOTHY BATEMAN, M.D.,                                    )  

RONALD CHRISTENSEN, M.D.,                                 )   No.7010 - May 15, 2015  

STEVEN L. FLOERCHINGER, M.D.,      )
  

JEREMY GITOMER, M.D., and                )
  

TERRY OLIVAS, M.D.,                                       )
  

                                                         )
  

                           Appellees.                    )
  

                                                         )
  



                  Appeal from the Superior Court of the State of Alaska, Third  

                  Judicial District, Patrick J. McKay, Anchorage, Judge.  



                  Appearances:  Richard W. Maki and David H. Shoup, Tindall  

                                                  

                  Bennett & Shoup, P.C., Anchorage, for Appellant.  Robert J.  

                                                                                        

                  Dickson  and  Christopher  J.  Slottee,  Atkinson,  Conway  &  

                                                          

                  Gagnon, Anchorage, for Appellees.  



                  Before:  Fabe, Chief Justice, Winfree, Stowers, and Bolger,  

                  Justices. [Maassen, Justice, not participating.]  



                  BOLGER, Justice.  



I.       INTRODUCTION  



                  Dr. Michael Brandner's hospital privileges at Providence Alaska Medical  

                                                    



Center were terminated after he violated hospital policy by failing to disclose an order  

                                                                                           


----------------------- Page 2-----------------------

from the Alaska State Medical Board that he undergo an evaluation   of his fitness to  



practice  medicine.    Dr.  Brandner  appealed  to  the  hospital's  Fair  Hearing  Panel  and  



                            

Appellate Review Committee, but the termination was upheld.  Dr. Brandner filed suit  



                                              

against the hospital and several doctors involved in the termination proceedings, alleging  



breach  of  contract  and  denial  of  due  process.    The  superior  court  granted  summary  



                

judgment in favor of the individual doctors because they are immune from suit.  We  



affirm.  



      

II.       FACTS AND PROCEEDINGS  



          A.       Facts  



                   Dr. Michael Brandner had hospital privileges at Providence Alaska Medical  



Center (Providence) since 1995.  He took a medical leave of absence from September  



                                                                      

2009 to March 2010 due to a cardiac condition.  When he returned to work his hospital  



privileges  "were  reinstated  with  the  exception  of  hand  surgery,  and  a  six-month  



                                                                              

exemption from call duties."  He was also subject to a one-year prospective review of his  



                       

surgical cases.  Reinstatement of his hand surgery privileges was delayed pending a two- 



year retrospective review of his hand surgery cases.  The review found him competent  



to continue with hand surgery.  



                   Later in 2010 the Alaska State Medical Board (Medical Board) investigated  



                                                                                                                   

Dr.  Brandner  after  receiving  a  report  that  he  had  threatened  an  employee  in  the  



                                                                                     

Governor's office concerning a child support matter.  The Medical Board ordered him  



                                                                                    

to submit to psychiatric and medical evaluations within 45 days "to determine his ability  



to  practice  medicine  in  a  manner  consistent  with  public  safety."    Dr.  Brandner  was  



evaluated at the Menninger Clinic in Texas and found fit to practice.  



                   Doctors who have privileges at Providence are required to comply with  



policies  set  out  in  the  Providence  Code  of  Conduct  and  Medical  Staff  Bylaws.  



                                                                                                                    

Providence Policy MS 980-150 requires doctors to report to the chief of staff or the  



                                                            -2-                                                      7010
  


----------------------- Page 3-----------------------

manager  of  the  medical  staff  services  department  "any  limitations,  restrictions[,]  or  



conditions of any sort imposed by a state board, health care entity[,] or agency with   



                                                         

respect to the practitioner's practice . . . no later than thirty (30) days after a final order  



has been issued."  The policy states that a violation of this reporting requirement will  



result  in  automatic  termination  of  hospital  privileges.    The  body  responsible  for  



overseeing  doctors'  compliance  with  these  policies  is  the  Medical  Staff  Executive  



Committee.  The executive committee makes recommendations to the Providence Alaska  



Community Ministry Board (Providence Board), which has the ultimate authority to  



make decisions regarding hospital privileges.  



                  Dr. Brandner attended the January 2011 executive committee meeting to  



discuss confusion regarding his call duties.  The executive committee was concerned  



                                                                   

about Dr. Brandner's "disjointed" statements at the meeting.  The executive committee  



                 

"elected to  hold another meeting in February to determine whether an investigation  



should  be  undertaken  to  determine  Dr.  Brandner's  fitness  to  practice  medicine  at  



[Providence]."    According  to  Dr.  Steven  Floerchinger,  a  member  of  the  executive  



                                                                                       

committee, Dr. Brandner's " 'rambling and confused' behavior at the February meeting"  



                                                                                                   

was cause for concern.  Consequently, the executive committee ordered Dr. Brandner to  



undergo an evaluation at the Menninger Clinic.  



                  Upon       receiving      this   order     Dr.    Brandner        contacted      Kim      Pakney,  



Providence's manager of medical staff services, to inform her that he had already been  



evaluated at Menninger.  According to Pakney, Dr. Brandner indicated that he had done  



                                        

so of his own volition at the suggestion of his cardiac surgeon, without mentioning the  



order  from  the  Medical  Board.    Dr.  Brandner  disputes  this  characterization  of  his  



conversation with Pakney; he testified that he told her that he went to Menninger "to  



pursue  some  things."    After  informing  Pakney  he  had  already  been  evaluated  at  



                                                                     

Menninger, Dr. Brandner signed a release so the executive committee could obtain his  



                                                          -3-                                                   7010
  


----------------------- Page 4-----------------------

                                               

records.    When  she  reviewed  the  records,  Pakney  realized  the  evaluation  had  been  



conducted pursuant to an order from the Medical Board.  



                    At its June 2011 meeting, the executive committee voted to recommend  



termination of Dr. Brandner's hospital privileges because he had failed to report the  



Medical  Board's  order  that  he  submit  to  an  evaluation.    The  executive  committee  



                                                                             

determined the Medical Board's order was a "final order" that imposed a condition on  



                                                                             

Dr. Brandner's license.  Accordingly, Dr. Brandner had violated Providence Policy MS  



                                                                      

980-150 when he failed to report the order to the chief of staff or the manager of the  



medical staff services department within 30 days.  



                    The       Providence           Board        affirmed         the      executive          committee's  



recommendation.    Dr.  Brandner  received  a  letter  from  Providence's  chief  executive  



officer in June 2011 notifying him that the executive committee  "recommended the  



                                                                    

automatic termination of [hospital] privileges and staff membership" and that he had the  



right to a hearing.  The letter also stated that the Providence Board "will not be bound  



by the adverse recommendation made thus far."  



          B.        Proceedings  



                                                                                                  

                    Dr. Brandner timely requested a hearing to challenge the termination of his  



privileges.    A  hearing  was  held  in  November  2011  before  a  Fair  Hearing  Panel  



                                                                                                      

composed of Dr. Timothy Bateman, Dr. Ronald Christensen, and Dr. Terry Olivas.  The  



                                                                                            

hearing panel heard witness testimony from Dr. Floerchinger and Dr. Jeremy Gitomer,  



                                                                                         

an executive committee member and the hospital's chief of staff.  Each testified about  



                             

the  importance  of  physicians  self-reporting  conditions  on  their  licenses  due  to  the  



                                                                

potential impact on patient care.  The two doctors also testified that when the Medical  



           

Board  or  another  hospital  takes  action  against  a  practitioner,  the  Medical  Board  or  



                                         

hospital typically does not notify Providence; Providence must rely on self-disclosure.  



                                                             -4-                                                        7010
  


----------------------- Page 5-----------------------

Both doctors testified that Providence needs to know about license restrictions because  

                                                                                  



it is responsible for the safety of its patients.  



                                                                               

                    Dr. Brandner argued that the Medical Board's order was not a "condition"  



on his license within the meaning of Providence's reporting policy.  He argued that the  



order was part of an "investigation" and the policy did not require doctors to report  



investigations.  He submitted an affidavit from a Medical Board investigator attesting  



that because Dr. Brandner had complied with the order to undergo an evaluation at  



                                                                                                                  1  

Menninger, the Medical Board had not imposed a condition on his license.   



                    The  hearing  panel  decided  the  order  did  impose  a  condition  upon  Dr.  



Brandner's  license  because  "[h]ad  Dr.  Brandner  failed  to  timely  complete  such  



evaluations, the state Medical Board would have automatically suspended his license.  



Dr. Brandner's license was thus conditioned or encumbered by the Medical Board's  



                 

[o]rder."        And  the  Medical  Board  investigator's  affidavit  did  not  fully  address  this  



question  because  it  was  "silent  on  whether  the  [o]rder  imposed  a  condition  on  Dr.  



                                                              

Brandner's license prior  to his timely  completion of the evaluation."  (Emphasis in  



                                         

original.)      The   hearing   panel   found   Dr.   Brandner's   testimony   concerning   his  



                       

interpretation of the policy less than credible because he did not accurately explain to  



                                                                                              

Pakney his reasons for visiting Menninger. The hearing panel ultimately agreed with the  



Providence Board's decision to terminate Dr. Brandner's hospital privileges.  



                    Dr. Brandner timely appealed the hearing panel's decision to Providence's  



                                                                                                        

Appellate Review Committee.  The Appellate Review Committee upheld the hearing  



                                                                                                        

panel's decision by a 4-1 vote.  Shortly thereafter the Providence Board notified Dr.  



                                                                                                 

Brandner's attorney that it had considered the recommendation of the Appellate Review  



          1         The hearing panel does not have subpoena power and the Medical Board       



declined to send a representative to testify at the hearing, so the affidavit was the only  

evidence from the Medical Board.  



                                                                -5-                                                         7010
  


----------------------- Page 6-----------------------

Committee and voted again to affirm the executive   committee's recommendation to  



terminate Dr. Brandner's privileges.  



                   In June 2013 Dr. Brandner filed suit in superior court against Providence  



                                                                                                       2 

                                                                                                                     

Health and Services-Washington, the corporation that owns Providence,  as well as Drs. 



                                                                  

Bateman, Christensen, Olivas, Floerchinger, and Gitomer.  Dr. Brandner alleged breach  



                   

of contract, due process violations, defamation, and other contract claims. He sought  



declaratory and injunctive relief restoring his hospital privileges as well as substantial  



money damages.  



                                      

                   The doctors moved for summary judgment, asserting that they are immune  



under both state and federal law.  First, the doctors argued they are immune under the  



                                                                                  3  

                                                                                     HCQIA provides immunity  

federal Health Care Quality Improvement Act (HCQIA). 



                             

from damages (but not equitable relief) to professional review organizations and those  



                                                     4  

who participate in review processes.   For immunity to apply, the professional review  



action must be taken  



                                                                                                   

                             (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  

                                                                                               



          2        Providence is not a party to this appeal, as will be explained below.  



          3        42 U.S.C.  11101-11152 (2012).  



          4        Id.  11111(a)(1).  



                                                             -6-                                                      7010
  


----------------------- Page 7-----------------------

                    obtain facts and after meeting the requirement of paragraph  

                          [5] 

                    (3).  



                    Second, the doctors asserted they are immune under Alaska state law.  



                                                                         

They argued that Drs. Floerchinger and Gitomer are immune under AS 18.23.010, which  



                                              

grants immunity to witnesses providing information to a review organization so long as  



                                                                      

the witnesses did not knowingly make false statements.  They also asserted that Drs.  



                                                                                                         

Bateman, Christensen, and Olivas, the doctors on the hearing panel, are immune under  



                                                                                        

AS 18.23.020, which provides immunity for participants in review proceedings if their  



                                                        

actions  (1)  were  not  motivated  by  malice;  (2)  occurred  after  reasonable  efforts  to  



ascertain  the  facts  upon  which  their  actions  were  based;  and  (3)  were  taken  in  the  

reasonable belief that their actions were warranted.6  



          5         Id.  11112(a).   



          6         AS 18.23.020 provides:  



                              A person who is a member or employee of, or who acts  

                                                                       

                    in  an  advisory  capacity  to,  or  who  furnishes  counsel  or  

                                                            

                    services to a review organization is not liable for damages or  

                                                                                               

                    other relief in an action brought by another whose activities  

                                                                           

                    have been or are being scrutinized or reviewed by a review  

                    organization . . . unless the performance of the duty, function,  

                                                                                          

                    or  activity  was  motivated  by  malice  toward  the  affected  

                                                               

                    person.  A person is not liable for damages or other relief in  

                                                                                           

                    an action by reason of performance of a duty, function, or  

                                                                                  

                    activity as a member of a review organization or by reason of  

                                                     

                    a recommendation or action of the review organization when  

                    the  person  acts  in  the  reasonable  belief  that  the  action  or  

                    recommendation is warranted by facts known to the person  

                    or  to  the  review  organization  after  reasonable  efforts  to  

                              

                    ascertain  the  facts  upon  which  the  review  organization's  

                    action or recommendation is made.  



                                                               -7-                                                         7010
  


----------------------- Page 8-----------------------

                    Dr.  Brandner  opposed  the  doctors'  motion  for  summary  judgment  and  



                                                                                      

cross-moved for partial summary judgment.  He argued the doctors did not meet the  



                                                               

requirements for immunity under HCQIA or state law.  Dr. Brandner asserted that Drs.  



                                                      

Floerchinger and Gitomer could not receive immunity under AS 18.23.010 because "Dr.  



Brandner's claims against them are based on their role as members of the [executive  



                                                                           

committee]."  He argued that his privileges should be reinstated because his due process  



                                                                                

rights were violated when his hospital privileges were terminated without a hearing and  



because the application of the reporting policy was arbitrary and capricious.  



                    In  reply  to  Dr.  Brandner's  opposition  to  their  motion  for  summary  



judgment, the doctors argued that in addition to being immune from claims based on  



                                                                  

their witness testimony under AS 18.23.010, Drs. Floerchinger and Gitomer are immune  



from claims arising from their executive committee membership under AS 18.23.020.  



                                         

                    The superior court granted the doctors' motion for summary judgment in  



part  and  denied  Dr.  Brandner's  cross-motion  for  partial  summary  judgment.    The  



                                                                                   

superior   court   determined   that   the   five   individual   doctors   are   immune   under  



                    7                                                     8 

                                                                                      

AS 18.23.020  because they did not act with malice,  made reasonable efforts to ascertain 



                      

the facts upon which their actions were based, and reasonably believed their actions were  



                                  

warranted.  Because it concluded the doctors are immune under Alaska law, the superior  



                                                    

court did not reach the question of whether the doctors are immune under HCQIA.  The  



                                                                                    

superior court entered a partial final judgment in favor of the doctors.  The superior court  



          7         The  superior  court  did  not  address  whether  AS  18.23.010  provides  



immunity against claims arising from Dr.  Floerchinger's and Dr. Gitomer's witness  

testimony.  



          8         AS 18.23.020 does not define "malice" for purposes of that statute; the  



superior court defined malice as "inten[ding] to commit a wrong, recklessly disregarding  

                                                                                    

another's legal rights, or bearing ill will."  



                                                              -8-                                                       7010
  


----------------------- Page 9-----------------------

                                                                                                                   9 

                                                                                             

also granted Providence summary judgment on Dr. Brandner's contract claims,  but not 

his due process claims.10  



                                                                              

                    Dr. Brandner appeals from the superior court's order dismissing his claims  



against the individual doctors.  



       

III.      STANDARD OF REVIEW  



                                                                                                     11  

                                                                                                           "Alaska  Civil  

                    A  grant  of  summary  judgment  is  reviewed  de  novo.  



                                               

Rule 56 provides for judgment to be granted to a party where 'there is no genuine issue  



                                                                                                            

as to any material fact' and 'the moving party is entitled to judgment as a matter of law.'  



  12 

                                                                

"     In this case, however, the superior court inquired whether a "reasonable finder of fact  



                                                                                          

could conclude" that the doctors fail to meet AS 18.23.020's conditions.  This is not the  



                                                                                                      

correct standard because "[s]ummary judgment does not require the non-moving party  



                                                                                              

to prove factual issues according to the applicable evidentiary standard, and does not  

                                                                                                             13   To defeat  

allow trial judges to predict how a reasonable jury would decide the case."     



a motion for summary judgment, the non-moving party need only "show[] that a genuine  

                                                                                                            



          9         The superior court held that because Dr. Brandner failed to present facts  



sufficient to support  his contract  claims under the summary judgment standard, there was  

no need to discuss  whether  Providence  was  immune  from Dr.  Brandner's contract claims  

under HCQIA.  However, it  also stated that  "even if Dr. Brandner had presented genuine  

issues of material fact with regard to his contract claims, [Providence] would remain  

immune to those claims under HCQIA."  



          10  

                                                                                                                 

                    HCQIA does not  grant immunity against civil rights  claims.   42 U.S.C.  

 11111(a)(1).  Brandner's due process claims against Providence were tried in February  

2015.  



          11  

                                                                                

                    Christensen v. Alaska Sales & Serv., Inc., 335 P.3d 514, 516 (Alaska 2014).  



          12       Id . at 517 (quoting Alaska R. Civ. P. 56(c)).  



          13       Id . at 519.  



                                                             -9-                                                        7010
  


----------------------- Page 10-----------------------

                                                                 14  

                                 

issue of material fact exists to be litigated."                      Thus the relevant inquiry is whether there  



                                                                                                                             15  

is "a genuine issue of material fact" concerning the applicability of AS 18.23.020.                                              



IV.	      DISCUSSION  



                                                                                                                     

                    To affirm the superior court's order, we must be convinced that there is no  



                                                                                                                     

material dispute that:  (1) the doctors made reasonable efforts to ascertain the facts upon  



which their recommendations were based; (2) they acted in the reasonable belief that  



their  recommendations  were  warranted  by  the  facts;  and  (3)  their  actions  were  not  

motivated by malice.16  



                                                                   

          A.	       The  Executive  Committee  And  Hearing  Panel  Made Reasonable  

                    Efforts To Ascertain The Facts Upon Which Their Recommendations  

                    Were Based.  



                                                                 

                    Dr. Brandner challenges Dr. Floerchinger's and Dr. Gitomer's actions in  



                                                                       17  

                                                                                                          

their capacity as executive committee members.                            Dr. Brandner argues that the executive  



committee failed to undertake reasonable efforts to ascertain the facts relevant to the  



termination of his privileges because it did not consider state law relating to medical  



                                                                                      

license conditions, Dr. Brandner's reading of the policy, and the ambiguity of the policy  



                                                                                       

language.  Dr. Brandner levies similar charges against the members of the hearing panel,  



          14        Id . (quoting Lockwood v. Geico Gen. Ins. Co.                        , 323 P.3d 691, 697 (Alaska   



2014)) (internal quotation marks omitted).  



          15	       Id .  



          16        See AS 18.23.020.  Dr. Brandner does not contest that the doctors were  



members of a review organization for purposes of AS 18.23.020.  We express no opinion  

                                                                                                  

on the federal immunity or due process questions.  



          17        Because we conclude they are immune, we need not decide whether Drs.  



Floerchinger and Gitomer could be individually liable for the group recommendation of  

                                                                                   

the executive committee.  And although we need not decide this question, we observe  

                                         

that Drs. Floerchinger and Gitomer are immune under AS 18.23.010 for their testimony  

                                                                                   

before the hearing panel.  



                                                              -10-	                                                        7010
  


----------------------- Page 11-----------------------

                                                

arguing that their fact-finding efforts were not reasonable because the hearing panel  



                       

"ignored [Dr. Brandner's] reasonable reading of the policy" and failed to give "any  



weight to the undisputed evidence of Dr. Brandner's professional competence."  



                                                                        

                    We have never before interpreted AS 18.23.020 or its "reasonable efforts"  



requirement.  The federal HCQIA includes the same "reasonable efforts" requirement,  



                                                                                             18  

                                                                                                                

however, and interpretations of that provision are informative.                                  In broad terms, courts  



                                                                                                  

have explained that HCQIA does not require a hospital to "carry out its investigation in  



any  particular  manner;  it  is  only  required  to  conduct  a  factual  investigation  that  is  



                                                         19  

reasonable under the circumstances."                         The Georgia Court of Appeals identified "the  



                                                                                       

determinative inquiry" as "whether or not the totality of the process leading up to the  



                                                                                                                         20  

                                                                                                                             Put  

board's decision evidenced a reasonable effort to obtain the facts of the matter." 



          18        See 42 U.S.C.  11112(a)(2) (2012).  Nevertheless, there is an important  



difference   between   the   two   statutes.      HCQIA   contains   a   presumption   that   its  

                                                                                                 

requirements were met, which may be rebutted by a preponderance of the evidence.  Id .  

                                                                            

 11112(a).  In contrast, AS 18.23.020 contains no such presumption, and under Alaska  

                                                                                                         

law the plaintiff at summary judgment need only demonstrate a genuine issue of material  

                             

fact as to compliance with the reasonable efforts requirement. Christensen, 335 P.3d at  

                                                                

516.  



          19  

                                                                                                                  

                    Cowell v. Good Samaritan Cmty. Health Care, 225 P.3d 294, 305 (Wash.  

                                                                                                                    

App. 2009); see also Singh v. Blue Cross/Blue Shield of Mass., Inc., 308 F.3d 25, 43 (1st  

Cir. 2002).  



          20        Davenport v. Ne. Ga. Med. Ctr., Inc. , 542 S.E.2d 525, 530 (Ga. App. 2000).  



In Davenport the court found a review organization's factual investigation reasonable  

             

despite  the  physician's  arguments  that  "many  of  the  complaints  were  improperly  

ascertained, insufficiently verified by the proceedings, or were otherwise refuted."  Id .  

Dr. Davenport, who had a history of disciplinary problems, gave a patient in labor ice  

chips in violation of hospital policy.  Id . at 528-29.  The hospital summarily suspended  

his epidural privileges, which were terminated permanently after a hearing.  Id .  The  

court found that in light of the Peer Review Committee's investigation, Dr. Davenport's  

                                                                  

                                                                                                              (continued...)  



                                                              -11-                                                         7010
  


----------------------- Page 12-----------------------

                                                                                                             

simply, a "[p]laintiff is entitled to a reasonable investigation under the Act, not a perfect  

investigation."21  



                    For  example,  in  Sternberg  v.  Nanticoke  Memorial  Hospital,  Inc.,  the  



                                                                                                     

Delaware Supreme Court held that a disciplinary review committee's efforts to ascertain  



facts  were  reasonable  even  though  the  committee  did  not  determine  whether  a  



                                                                                                                     22  

                                                                                                                          Dr.  

physician's specific act of insubordination presented a risk of harm to his patient. 



Sternberg had invited a reporter into his operating room as part of a story about his  



                                                                                               23  

political campaign; his privileges were suspended the same day.                                    The court held the  



committee's investigation "was reasonable because the only relevant facts were:  (1)  



                                                                                  

[Dr.] Sternberg was told that he could not engage in any political activity at the hospital;  



(2) he misleadingly described the visitor's purpose as educational; and (3) the reporter  

was there to write about [Dr.] Sternberg's political campaign."24  Although the committee  



                                         

did  not  consider  whether  the  reporter's  presence  posed  a  danger  to  patients,  Dr.  



                                                                                                                  

Sternberg had a history of insubordination and "it was reasonable to believe that [Dr.]  



          20        (...continued)  



several meetings with the committee, and the evidentiary hearing, Dr. Davenport "failed  

to demonstrate that the totality of the process leading up to the board's decision was not  

                                                                                                       

a reasonable effort."  Id . at 530.  Dr. Davenport had challenged the ultimate revocation  

                                                                       

of his privileges after a hearing, so the court did not address the question of whether the  

          

disciplinary organization made reasonable efforts to ascertain the facts before initially  

suspending him.  



          21  

                                                

                   Singh, 308 F.3d at 43 (alteration in original) (quoting Egan v. Athol Mem'l  

Hosp. , 971 F. Supp. 37, 43 (D. Mass. 1997)) (internal quotation marks omitted).  



          22        15 A.3d 1225, 1231-32 (Del. 2011).  



          23       Id . at 1229.  



          24       Id. at 1231 (internal quotation marks omitted).  



                                                            -12-                                                       7010
  


----------------------- Page 13-----------------------

Sternberg was uncontrollable and, therefore, presented a threat of harm to patients or  

staff."25  



                                                 

                   In  Dr.  Brandner's  case,  the  executive  committee  and  hearing  panel  



                                                                                                 

conducted factual investigations that were reasonable under the circumstances.  The  



executive  committee  based  its  decision  on  the  Medical  Board's  order  and  the  



uncontradicted  fact  that  Dr.  Brandner  had  not  reported  the  order  to  Providence.  



Although the executive committee did not conduct an evidentiary hearing, the factual  



                                                                                         

basis for its decision is undisputed.  Dr. Brandner argues that the executive committee's  



fact-finding efforts were unreasonable because the executive committee did not consider  



                                                                                                          

his interpretation of the policy.   However, Dr. Brandner's arguments relating to the  



                                                                            

correct interpretation of the policy raise questions of law, not fact.  Our inquiry into  



                                                                            

whether the review committee's fact-finding efforts were reasonable does not require us  



to  make  a  legal  determination  concerning  the  correct  interpretation  of  the  reporting  



                                                                 

policy.  Finally, Dr. Brandner's professional competence is not relevant; his professional  



                                                                                               

competence does not excuse his violation of the reporting policy. Thus because the facts  



                                                                                                  

underlying the executive committee's decision are undisputed and Dr. Brandner points  



to no additional relevant facts, we conclude that Dr. Brandner has not demonstrated a  



          25       Id . at 1232.  For an example of an unreasonable investigation, see Brown  



v. Presbyterian Healthcare Services ,  101 F.3d 1324 (10th Cir. 1996).  In Brown , Dr.  

                                                                                               

Brown's  economic  competitor  participated  in  the  review  process,  the  review  panel  

examined only two patient charts before terminating her privileges, and she produced  

expert testimony that she complied with the procedures she allegedly violated. Id . at  

1333-35.  The  court  held  that  Dr.  Brown  had  "presented  sufficient  evidence  for  a  

                                                                        

reasonable jury to find, by a preponderance of the evidence, the peer review action was  

not taken after a 'reasonable effort to obtain the facts of the matter.' " Id . at 1333. We  

                                                                                                        

note that Dr. Brown received a hearing before her privileges were terminated, in contrast  

                                           

to Dr. Brandner's automatic termination and post-termination hearing.  Id . at 1328.  



                                                            -13-                                                       7010
  


----------------------- Page 14-----------------------

disputed  fact  that  could  show  the  executive  committee  members'  investigation  was  



unreasonable.  



                                                                                       

                    The hearing panel's fact-finding efforts were more comprehensive than the  



                                                                  

executive committee's, as the hearing panel conducted a full evidentiary hearing where  



                                 

Dr. Brandner had the opportunity to present witnesses and exhibits and cross-examine  



adverse witnesses.  The hearing panel detailed its factual findings in a lengthy written  



                   

report.  Dr. Brandner does not identify any fact relating to the reporting policy that he  



                                  

believes  the  hearing  panel  should  have  considered  and  did  not.    He  raises  legal  



                                                                                                         

arguments concerning the hearing panel's decision, but his arguments do not implicate  



                                            

any contested factual issues. Accordingly Dr. Brandner has not demonstrated a material  



                                           

factual  dispute  concerning  whether  the  hearing  panel's  fact-finding  efforts  were  



reasonable.  



                                                                                                     

          B.	       The  Executive  Committee  And  Hearing  Panel  Acted  With The  

                    Reasonable Belief That Their Actions And Recommendations Were  

                    Warranted.  



                                                                                                                       

                    Dr. Brandner argues that the executive committee and hearing panel did not  



reasonably believe their recommendations to terminate his privileges were warranted  



because  there  was  no  evidence  Dr.  Brandner  was  a  risk  to  patients  and  it  was  not  



                                                                                 

reasonable to terminate him for violating a "technical reporting requirement."  But the  



                                                                  

executive committee relied on a reasonable reading of the policy, which states that the  



punishment for a violation is automatic termination of privileges.  The hearing panel  



                                                                                                  

relied on the policy, as well as the testimony of four witnesses and a number of exhibits.  



                                                                          

It issued a written opinion detailing the evidence it considered and why it believed the  



                                                                                       

evidence demonstrated that Dr. Brandner had violated the policy, requiring termination  



of his privileges.  



                                                             -14-	                                                       7010
  


----------------------- Page 15-----------------------

                   The key point is that the executive committee and hearing panel relied on  

                                                                                    



a  reasonable  reading  of  the  policy  and  imposed  the  corresponding  sanction.    Dr.  



Brandner's views about the merits of the policy and his protestations that the sanction  



                                                     

is unreasonably harsh are simply not relevant.  Dr. Brandner has not demonstrated any  



                          

disputed fact that could call into question whether the executive committee and hearing  



panel reasonably believed that Dr. Brandner violated the policy or that termination of his  



privileges was warranted.  



         C.	       The Executive Committee And Hearing Panel Were Not Motivated By  

                   Malice Toward Dr. Brandner.  



                                                  

                   Dr.  Brandner  argues  the  executive  committee  and  hearing  panel  acted  



maliciously because they recklessly disregarded evidence of his competence,  "recklessly  



                                                                                                         

imposed the most drastic sanction within their power without regard to the ambiguity of  



                                                                                                         

[the policy] and the unfairness of penalizing a practitioner who relied on a reasonable  



reading  of  that  policy,"  and  failed  to  pay  "due  regard"  to  "Dr.  Brandner's  rights  to  



             

practice his profession and earn a livelihood."  Dr. Brandner also charges the executive  



committee  with  recklessly  disregarding  his  rights  by  not  "affording  him  his  well- 



established right to notice and [a] hearing."  



                   The immunity statute does not define "malice."  The superior court put forth  



a definition it adopted from Black's Law Dictionary : "inten[ding] to commit a wrong,  



                                                                                           26  

                                                                                                      

recklessly disregarding another's legal rights, or bearing ill will."                          Dr. Brandner does  



not argue that the executive committee or hearing panel "inten[ded] to commit a wrong"  



or "[bore] ill will" toward him.  And his arguments that the executive committee and  



hearing panel were reckless are unavailing.  



         26        Cf.  BLACK 'S  LAW  DICTIONARY  1042   (9th  ed.  2009)  ("malice,  n.  (14c)  



1. The intent, without justification or excuse, to commit a wrongful act.  2. Reckless  

disregard of the law or of a person's legal rights.  3. Ill will; wickedness of heart.").  



                                                          -15-	                                                   7010
  


----------------------- Page 16-----------------------

                    The  executive  committee  and  hearing  panel  reasonably  interpreted  the  



                                                                        

 policy, which did not require them to consider Dr. Brandner's professional competence  



                                                                                     

 or "rights to practice his profession and earn a livelihood."  They enforced the sanction  



 explicitly indicated in the policy.  The merits of Dr. Brandner's underlying due process  



                                                                                  

 claims  against  the  executive  committee  are  not  part  of  the  immunity  analysis.    Dr.  



                                                                                                       

 Brandner  has  not  raised  any  material  evidence  tending  to  show  that  the  executive  



 committee and hearing panel were motivated by malice.  



 V.       CONCLUSION  



                  We AFFIRM the superior court's order dismissing Dr. Brandner's claims  



against the individual doctors.  



                                                          -16-                                                    7010
  

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