*1
Edingеr
103, conditions,
also
Edinger,
v.
2006 SD
standing
social
and relative
¶
¶
852,
(using
Zepeda,
101, 21,
N.W.2d
a tax
fault. See
2001 SD
Price,
that
average
return
better
reflected
in-
(citing
N.W.2d at 55-56
2000 SD
come).
¶
(citations
61,
obligation obligation rather than his deter- solely by GILBERTSON, mined Justice, his income.3 See id. Chief SABERS, ZINTER,
and Alimony 4. Property Division MEIERHENRY, Justices, concur. Daniel claims the court’s property division and alimony award of left
him to do nothing but sell the house and
declare bankruptcy. He contends that
“there is no sufficient
reason
award
Renee one half of everything” because WOJEWSKI, M.D., Paul A. they have “been married for Plaintiff seven years Appellant, purchased [he] the home several years before” marriage. He also chal lenges the requirement court’s pay RAPID HOSPITAL, CITY REGIONAL Renee a lump payment $15,406. sum INC., Hart, M.D., Charles and Robert The court parties’ considered the relative Allen, Jr., M.D., Glenn Defendants and marriage roles and concluded that Appelleеs. equal split an was warranted. Based on review, our the court did not abuse its No. 23954. discretion. Supreme Court of South Dakota. We also conclude that the Argued Jan. 2007. alimony court’s award was not abuse of Decided March . discretion. The analyzed court length of the marriage, parties’ earning ca
pacities, their ages, physical health and correction, In a the circuit court $542.25. later duced the support child $598 *2 also 450
See F.3d *3 Reynolds Reynolds Barker
Michael P. L.L.C., Rapid City, Law Da- Firm South kota, E. Barker and Kenneth Barker of *4 L.L.C., Reynolds Law Firm Belle Fourche, Dakota, Attorneys ap- for South Special pellant, Wojewski, Adminis- Sara trator for Estate. Wilczek, Lovejoy Daniel of
Daniel M. G. L.L.P., Faegre Minneapolis, Benson & Truhe, Minnesota, D. Rapid Marvin Dakota, City, Attorneys appel- South lees.
SABERS, Justice. City Rapid Regional Hospi- 1.] After (RCRH) Wojewski’s Dr. Paul tal removed Wojewski1 (Wojewski) privileges, clinical circuit variety of sued theories.2 granted motions to dismiss court RCRH’s3 summary on one claim and its motion for Wo- judgment on the rest the claims. jewski affirm. appealed. We the automobile-pedestrian Appeals The Court law claims. Id. Wojewski died in initiating the Eighth several months after the the accident Circuit affirmed dismissal 8, 2005, On his estate was Wojew suit. November Title I Rehabilitation Act claims. party. as a substituted Hosp., City Reg’l F.3d Rapid v. ski (8th Cir.2006). It also the Title ordered Wojewski district court seek- sued in federal Wojewski III dismissed as moot since claim ing the with relief under Title I of Americans appeal Id. pending. had died while the ADA, (ADA), Act Title III of Disabilities brought the at 342. state law actions He then Act, law and six state Rehabilitation Wojewski City Rapid state court. circuit v. City Reg'l Rapid Hosp., claims. County Reg’l (Pennington Hosp., 05-650 No. (D.S.D.2005). F.Supp.2d 1134 The dis- 15, 2005). subject action Nov That granted summary judgment court in fa- trict appeal. this I on the Title and Reha- vor of defendants Act bilitation claims Rapid Regional City 3.The Defendants hospital. employee Id. at 1140. not an Hart, Hospital., Robert Charles and Dr. Dr. III since Wo- The Title claim was dismissed Allen, They to col- will be referred Glenn Jr. jewski or customer” of the was not a “client RCRH, identifica- lectively unless further hospital. district de- Id. at 1145. The court necessary. tion is jurisdiction over the state clined to exercise meeting Wojewski’s psychiatrist, FACTS Manlove, Steven told Dr. Hart that Wo- Wojewski was a cardiothoracic jewski Oury was not manic. Dr. told the surgeon joined who the medical staff of group thought perform he could RCRH 1988. In the summer of surgery, scheduled based on his obser- Wojewski started to exhibit unusual behav- group vatiоns.4 The concluded that Wo- ior. manic episode July He suffered a jewski perform could the scheduled sur- where he was arrested and under- gery and him. suspend did not inpatient went psychiatric treatment. Two later, months he suffered another manic Unfortunately, Wojewski suf- episode. fered a manic episode during surgery. diagnosed He refused bipolar working [¶ 3.] He was with to continue on disorder, patient September anyone refused to allow to help took patient. Wojewski leave of absence from RCRH. That same was escorted from month requested operating security reinstatemеnt room to the and Dr. Oury completed surgery. RCRH medical staff. RCRH reinstated Wojewski, conditions, hospital reviewing subsequently sus- *5 psychiatric pended. four reports. Wojewski met all
the conditions of his reinstatement and all Wojewski requested a hearing [¶ 8.] conditions in January were removed 1999. and a Fair Hearing Panel was assembled. 2003, Wojewski In June had an- The Panel a four-day hearing, conducted other episode. manic According to Wojewski represented by where coun- RCRH, Wojewski did not inform it of his sel. At the of the hearing, conclusion Instead, manic episode. he took a volun- Panel determined tary 2003, leave in July of absence should not be reinstated because of the informing hospital “his difficulties.” threat unpredictable future relapses due bipolar his disease. Panel’s deci- Wojewski returned to RCRH on upheld sion was by Appel- reviewed and an 12, August 2003. His were sub- late Review Committee and RCRH’s ject conditions, including requirement a Board of Trustees. that he inform changes RCRH his mental health. Dr. Oury James Wojewski RCRH, sued Dr. Hart appointed Wojewski. to monitor alleging and Dr. Allen Jr. six different Wojewski contract,
[¶ 6.] When returned counts: breach of tortious inter- RCRH, several individuals noticed he ference with prospective business advan- result, acting strangely. As a tage, fiduciary a breach of duty, aiding and morning August 19, was held the abetting a fiduciary duty, breach of negli- Wojewski determine if gent should be sus- infliction of emotional distress and pended or be allowed to continue with his intentional infliction of emotional distress. surgery Wojewski privileges. or, had a sur- RCRH filed a motion dismiss in the gery morning. alternative, scheduled for that summary The in- for judgment. The dividuals involved in the meeting granted were Dr. circuit court RCRH’s motion to Oury, Hart, Dr. Charles Dr. Robert immunity. Glenn dismiss on the basis of It also Allen, Jr. and Dr. granted, Dennis Nesbit. Prior to ground, alternative Oury perform 4. Wojewski ing, prior saw surgery, but thought to the previous day morning. and observed him that was rational. Dr. Hart met with after the meet- beyond it appears claim unless doubt the state motion on summary judgment plaintiff prove can no set of claims. tort support of his claim which would facts appeals and raises the [¶ question him to relief.” The entitle following issues: light whether in the most favorable Quality Health Care 1. Whether and with doubt resolved plaintiff, Act Improvement affords behalf, complaint his her states allowing to defendants court any valid claim of relief. The surgery on perform beyond allegations for relief go must 2003. complaint “examine the to deter- Physician Impaired 2. Whether allegations provide relief mine if the Policy is contract. Statement any possible theory.” on interference with Whether a tortious (internal omitted). ap- “An Id. citations advantage prospective business presents a peal of a motion to dismiss party fails to claim can stand when question of law and standard of ‘review our act, affirmatively than acts. rather novo, given is de with no deference to the ” duty is created fiduciary Whether legal (quot- trial court’s conclusions.’ Id. exercises party purposely when a Schwebach, ing City Colton v. 1997 SD person’s complete control over ¶ 771). N.W.2d actions. a sum 12.] Our review of granting the court erred 5. Whether mary judgment is well settled. summary judgment negligent reviewing grant or a denial of sum- *6 emotional distress claim. infliction of 15-6-56(c), SDCL mary judgment under granting the court erred 6. Whether moving we must determine whether the intention- summary judgment on the any the party demonstrated absence distress al infliction emotional and genuine issue material fact claim. judgment the entitlement to showed law.
merits as a matter of The evidence OF REVIEW STANDARD favorably most to must be viewed nonmoving party and reasonable doubts “It is well settled that moving 12(b)(5) against resolved should be dismiss under Rule motion to ‘[a] however, nonmoving party, claim, party. The not the plaintiffs the law of a tests ” that specific showing facts present must it.’ v. support Farri facts which Osloond ¶ for exists. genuine, material issue trial 4, 20, er, 28, 22 SD 659 N.W.2d 2003 appeal is to determine Summers, Our task on 1997 SD Thompson v. (quoting fact (additional genuine ¶ issue material 5, 387, 103, 390 567 N.W.2d correctly the law was omitted)). court, and whether exists The circuit citations any If basis which applied. there exists complaint’s allegations considers] court, ruling of the trial supports any which are attached. exhibits summary judgment is affirmance accepts pleader’s descrip- The court proper. along with happened tion оf what ¶ 8, 66, Hosp., 2000 Read McKennan SD reasonably drawn there- v. conclusions 782, Cup (quoting sufficiency 610 N.W.2d 784 .... “In appraising Coffee Inc., Stores, follow, course, Stops Fuel & Convenience we complaint 46, ¶17, N.W.2d 1999 SD 592 Donnelly, accepted complaint rule that should omitted). 926) (additional 924, citations to state a not be failure dismissed 632 HCQIA by immunity Whether affords also covered
[¶ defined 13.] immunity August as, to RCRH its 2003 and its decision to allow activity entity of a health care with day. perform surgery to respect physician (A) to an individual — Qual The Health Care the physician may determine whether ity (HCQIA), Improvement Act 42 U.S.C. to, privileges respect have clinical “ eg., passed section 11101 et s was ‘to im (B) in, entity, membership or quality prove the of medical care en scope determine the or conditions of physicians couraging identify and disci (C) such or or membership, pline are or physicians incompetent who change modify or such ” unprofessional
who engage behavior.’ membership. Care, Sugarbaker v. Health SSM 190 F.3d 11151(10) (8th Cir.1999) (emphasis sup- (quoting Mathews plied). Hosp., v. Lancaster Gen. 87 F.3d (3d Cir.1996) H.R.Rep. (quoting No. concedes the (1986))). Cong., Congress 99th 2d Sess. 2 taken by August actions RCRH gave immunity participants engaged are incident immune from dam professionаl peer review in order actions ages under the His conten sole (cit peer to advance effective review. Id. tion is the August morning meeting to 11101(5),11111(a)). §§ ing 42 U.S.C. revoking discuss privileges and For apply, the ac- subsequent decision to him allow tion come the statutory must within mean- 1) continue with surgery peer re Read, ing of “professional review action.” 2) actions, view the group was not a ¶66, 18, (quot-
2000 SD
individual conduct RCRH claims [¶ 17.] 19 adversely fects or could affect the health morning meeting “professional is review or of a or patient patients), welfare activity” meaning HCQIA within the of (or affect) may adversely which affects immunity. and entitled to See 42 U.S.C.A. privileges, membership the clinical or in 11151(10); § Singh v. Blue Cross/Blue professional society, a physician. Mass., Inc., Shield 308 F.3d 36-37 n. of Such term a formal of includes decision (1st Cir.2002). 11 If its contention is cor- a professional body not take review rect, RCRH be would immune from the an a action or make recommendation alleged damages of the causes state law of in previous described sentence grant action and the circuit court’s of professional also includes review activi- prop- RCRH’s motion to dismiss would be relating ties to a review professional (“If 11111(a)(1) § 42 er. See U.S.C.A. a action. professional profes- action ... a review of 11151(9) § 42 (emphasis sup- sional review meets all the standаrds 11112(a) plied). activity” “Professional review is specified section of this title surgery if that one could contin- shall not determine participating [any person ]5 ... any law the ue and was not a determination of his damages under liable in be of ... surgical privileges. deciding State if a or States United of action.”) (Emphasis sup- may perform surgery hospi- .at their to the doctor
respect is of phy- tal a determination whether the plied). sician’s should be modified. HCQIA was enacted While the clearly meeting activity This was time is the second we this may the physician determined “whether a ac- hospital’s havе considered whether privileges, have clinical to determine [or] immunity provisions. tion falls within its or of scope conditions such ¶ 18, Read, at 2000 SD 610 N.W.2d See modify ... such change or to in this case are the actions 785. Whether 11151(10). leges....” See 42 U.S.C.A. activity” a matter review “professional Therefore, morning meeting meets the ¶ (finding id. impression. first See statutory review definition the decision non- no meeting The held activity.” See id. was based radiology privileges renew the determining purpose for the and not contract on an exclusive service Wojewski’s surgery privileges should conduct of professional cоmpetence “the if he “changed or modified” or should be HCQIA). physician,” required surgery. to conduct See id. allowed v. Lancaster Gener- In Mathews “pro- term Hospital, the court found the al qualify for immuni- order activity” “prelimi- mean activity fessional ty, must professional taken ‘a nary investigative measures to the review action.” professional “[relate] the facts’ rele- 11151(9). reasonable effort to obtain Therefore, change physician’s in a possible vant to a must morning meeting “[relate] also (quoting at F.3d privileges_” action.” See id. The professional review Hosp., Gen. Mathews Lancaster subject is related both time meeting (D.Pa.1995)). The F.Supp. review action. matter to action” “professional review court found subject matter The had the same results from re- “the decision that review action—whether as the pro- The facts Id. view the obtained.” perform be allowed should subpart fessional review activities are danger of his potential due to precursor meeting occurred episodes. manic (“The ‘professional action. Id. definition panel hearing fair shortly before review, encompasses decisions or action’ Wojewski’s surgical to determine called by peer review bodies recommendations involved *8 Because privileges. lesser that impose that ... some sanction Wojewski’s change in or a modification eventually physician’s may affect professional it is a surgery privileges leges.”). and, it was activity; because related view action, meet- review the professional to to the this hold urges RCRH Court
[¶ 20.] Mathews, immunity. See to ing is entitled morning of 19 meeting the on the “a decision or (finding at activity. 87 F.3d 634 review Wo- professional was the standard to monitor simply recommendation meeting to jewski argues the agreement the with immunity fоllowing or other formal grants the contract to 5. The statute (D) participates "(A) any person who body, and professional review the individuals: body respect the (B) acting the with body, any person or with or assists as a member (a)(1)(A)-(D). § (C) 42 11111 any ....” U.S.C.A. body, person under a action staff to the 634 provided by immunity care physician they or factfind- not a “profes because are
ing physician to ascertain whether a has body,” sional review but do not we need to provided adequate are “professional care” if determine the informal the group meets activities”); review U.S.C.A. First, “profes definition. the definition of 11161(9)-(10). § activity” sional review includes activities Hart, entity. a health care Dr. as the also claims the CEO, Oury, physician interim and Dr. the group” hoc that morning “ad assembled responsible supervising Wojewski, body” not a “professional review car doctors, along acting with the other were “professional rying out review action.” RCRH, on behalf the health care entit next determination is whether the Indeed, y.6 Wojewski concedes Hart that, group of doctors met is a “profession and Dr. Allen on “acting were behalf of body” al review under “Profes Appellant Wojew- RCRH.” Brief for at body” “a sional review is defined as health Rapid City Reg’l ski v. Hosp., SD 33 entity body care and the governing any or (2007). Second, grants the statute immu entity committee a health care which nity not review professional activity, conducts review body” “any person but also who partici includes committee the medical staff pates or body respect with assists the with entity gov of such when assisting action. ...” erning body professional review activi 11111(a)(1)(A)-(D). Because the doctors 11151(11). ty.” U.S.C.A. engaging professional review ac The informal group of doctors tivities related “assisting governing body in a (revoking Wojewski’s surgical action privi activity,” it since was leges) the doctors are immune from liabili Wojewski’s determining surgical ty. 11111(a)(1); See U.S.C.A. should be modified. 11151(9). argues that this cannot be a committee had prior never met to this that if claims we de- subsequent or to the meeting and cide group immunity this has Au- it did not issue formal decision notes. decision, gust we then require the definition does not have give every would time formal, appointed committee two doctors met over coffee and discussed elected or retain the same members. It physician’s qualifications. another This “any states that committee of the medical argument downplays power of this is a staff’ “when group of doctors7 and is irreconcilable assisting governing body profes- in a arguments. other Wo- activity.” sional review jewski argues group this same had any event, fact, have, Wojewski may power stop, ar- and in should gue group -of may doctors him stopped performing have agents corporations 6. Officers Wojewski signed and act 7. This also discounts the fact *9 Barclift, on their Z. Corpo behalf. Jill Senior agreement/conditions of reappoint- letter of Duty rate and the Candor: Do the ment, subject Officers pre- of which made his work to Duty Inform?, CEO and Have a CFO to 41 Val. screening, suрervision by Oury Dr. and P.Q. (citing Lyman U. L. Rev. 276 John argument, view. At oral he conceded this Millon, & Recalling Why Corporate son David peer letter was review and affects his Fiduciaries, Mary are 46 Wm. & L. Officers Rev. leges. (2004)). [Wojewski].” It that Yet, fence follows the deny to of Wojewski wants August 19.8 meeting should be immune decision be- decisions any group the body liability. Any from other decision not review frus- it was cause assisting profession- congressional the behind trates the intent the committee action. al review power- not this was agree Even if we were to with discussion. group, impromptu or an
less group that not the does meet meeting to make a decision group This conducting the of definition “committee” Dr. surgical privileges. Wojewski’s about activities, the physi- charged responsibility with the Oury was liability. cians would still be immune from his medical overseeing of noted, immunity granted previously As reinstated, Dr. Hart was were “any person participates to who with or and Dr. hospital, the the interim CEO of body] [professional the with assists Allen, of Director Sur- was the Medical Jr. respect [professional to the review ac- pow- had the group If this gical Services. 11111(a)(1); tion]....” claims, er, to him from stop Holy System Corp., Cross Health Fobbs it it then follows that surgery, performing (E.D.Cal.1992). F.Supp. him to retain his had to allow power the reviewing surgi- the physicians These types It is these surgical privileges. Wojewski in cal order to capabilities from lia- HCQIA that immunize decisions if keep surgical determine he should his bility. review ac- privileges. The tion” in this was to revoke case HCQIA created 27.] [¶ surgical and “as- the that physicians hospitals and to immunize respect the the ac- sist[ed] liability punish physicians revoke or noted, the court the pro- tion.” As circuit types these deci to facilitate order activities are not limited fessional review stated, “In Circuit sions. As the First day hearing the fair panel first that the type encourage peer the order to work, “interpreted began its but are expose incompetent physicians, that would enough focus on the evaluation broadly entities and HCQIA the shields health care investigation of preliminary and the liability for physicians from individual physician’s privileges should be whether performed the damages for actions suspended.” or modified or changed competence the monitoring course personnel.” Singh, 308 F.3d health care omitted). Finally, Wojewski argues, (additional Any
at 31 citations appeal, first time on meet made in the decision immune because the ing actions “monitoring compe- was made while HCQIA argument, Wojewski specifically argument, Wojewski modified his 8. At oral allege states, argument slightly doctors should prevent ob- fail[ed] "Defendants stopped surgery, but instead not have performing heart sur- viously sick man from reported should have called Frost clearly power gery had —when peer review would have start- him. Then their avail to do so....” mechanisms at peer could de- ed review committee 14-15, Wojewski, Appellant at Brief for surgery could have con- termine whether the event, (2007). SD 33 argument made in thе tinued. This Impaired Physician Poli- doctors followed the section, alleging a failure breach of contract spe- cy the statute immaterial as Statement is Statement, Physician but Impair follow immunity applies cifically when defines HCQIA argument. In the not made *10 statutory standards in August morning meeting part U.S.C.A. section is a of 11112(a) hospital’s professional were not met. Before a review action. The individual professional parts professional review action falls within the do review action HCQIA’s grant immunity, standards, of four stan- not just need meet the dards be met. professional must These standards re- review action as whole. As Fobbs, quire: HCQIA “[t]he court noted require professional does not that a review professional must [A] review action body’s investigative entire course of con- taken— particular duct meet standards in order (1) in the reasonable belief that the ac- it liability to be immune from ulti- for its tion was of quality furtherance F.Supp. mate decision.” at 1065.9 care, health Therefore, only ac- (2) after a reasonable effort obtain (revocation tion privileges) meet must matter, the facts of the Wojewski the standard. concedes the rev- (3) adequate after hearing notice and ocation his meets the stan- procedures phy- are afforded to the dard, argument therefore his fails. sician involved after such other Finally, spends much procedures physi- as are fair to the arguing his brief the individual doctors circumstances, cian under the knew or should have known (4) in the reasonable belief that the ac- from suffering episode. a manic also He by tion was warranted the facts finds fault with the individual ac- doctors’ after known such reasonable effort tions or inaction in he still deciding could to obtain facts perform surgery. neither Wo- (3). requirement paragraph jewski nor his wifе the hospital informed 11112(a). § pre- is a There event, relapse.10 of his In sumption that the review ac- hospital knew or should have known standards, statutory tion has met “un- Wojewski hospi- should have informed the the presumption less is rebutted tal consequence. is of no The discussion preponderance of the evidence.” Id. during the decision made the August immune, morning meeting concedes the is regardless professional review action after the sur of who knew or should have known his gery incident meets the standards. The manic state. contemplate does not apply process gathering the effect of other Hos- “Y”. facts words, pital procedures. investiga- In other before a "Y” fact plaintiff tion is undertaken require would deciding, that a so the court reasonable effort be made to illustrated the obtain problem supporting initiating applying facts the act of the standards to initial investigation, "Y” required complete acts fact ade- profession- the final addition to quate hearing regarding notice the fact al action: investigation. "Y” This is nonsensical. impossible apply [I]t would be apply The standard intended to dis- 11112(a) standard to acts which en- decisions, ongoing сrete not to an course of compassed within For the standard. exam- conduct. ple, requires the standard that reasonable Fobbs, F.Supp. at 1065. efforts be made to obtain the facts of the matter, meaning According Hearing the facts of the matter to the Fair Panel Rec- ommendation, upon those Wojewski's which the knew wife action was based. suffering relapse These facts will be and she did called "Y". apparently hospital repu- facts Plaintiff would preserve tell the order his 11112(a) require that the whole standard tation. *11 review actions. engaged professional than Any interрretation other
[¶ 32.]
Care, 190
Sugarbaker v. SSM Health
F.3d
con-
frustrate'the
today’s decision would
Cir.1999).
(8th
an action
It
Whether
behind
gressional intent
a
action” necessari-
is
review of
peer
facilitate
designed to
adversely
action
affect
ly requires the
in order to
doctors
incompetent
potentially
v. Lancas-
privileges.”
“clinical
Mathews
protect patients.
and
improve health care
(3d
F.3d
Hospital,
ter
logical
General
to its
argument
Taking
Cir.1996). “Professional review action” is
ever meet
no doctors would
consequence,
as:
a
defined
stop sur-
they should
to discuss whether
surgеry because
conducting
pro-
of a
geon from
An action or recommendation
their discussion
liable for
taken or
body
would be
which is
fessional review
Wojew-
any subsequent
professional
decision.11
conduct of
made
attempt
merely a
at
is
backdoor
on the com-
activity,
ski’s claim
which is based
view
the revocation
of an
recovering damages
from
or
petence
conduct
he
recov-
he knows
cannot
...
which af-
physician
his license when
individual
(or
affect)
the Au-
may
adversely
that decision.
the clini-
er from
fects
meeting
privileges,
pro-
assisted
or
gust
membershiр
cal
review ac-
society,
physician.
in its
fessional
in the decision.
encompassed
is
tion and
added).
11151(9) (emphasis
though
group
even
This is so
‘professional
review ac-
“The definition
formal,
may
informal,
which
than
rather
or recommen-
encompasses
tion’
decisions
litigation.
preferred procedure to avoid
directly
by peer
bodies that
dations
The
involved in
persons
clinical
physician’s
curtail
August
the decision
may
impose
lesser sanction that
some
damages
There-
liability.
immune
eventually
physician’s privileges.”
affect
fore,
necessary
to reach
state
it is
Mathews,
The term GILBERTSON, Justice, Chief privileges, membership on the medical ZINTER, staff, per- and KONENKAMP and and the other circumstances Justices, concur. care furnishing of medical taining other li- physician under which MEIERHENRY, Justice, is per- practitioner care censed health specially. concurs aby care health mitted furnish such MEIERHENRY, (concurring Justice entity. care specially). morning On the 37.] [IT met to group an informal doctors clarify the I and write to concur perform able to if as defined determine privileges” “clinical term majority he had scheduled. Act Quality Improvement Health Care informally that the doctors who concludes HCQIA, Con- (HCQIA). Pursuant lia- morning immune from immunity met that gress granted participants has privileges, panel even hearing revoked his "any opinion states decision” This Wojewski’s argument, argues then agreed with in his though exactly if we what he this is prevented have sued had the doctors could they should have done. brief that conducting surgery, the fair him from *12 bility engaged pro- were SD fessional review activities to ... related ENGINEERING, INC., SPISKA revoking Wojewski’s surgical privileges. Plaintiff Appellee, ¶24. supra, See This conclusion over- actually states what occurred. The doc- THERMO-SHIELD, INC., SPM tors met to decide whether Appellant. Defendant and capable doing surgery that morn- ing. The doctors decided he took No. 24229. no further It action. until not Supreme Court South Dakota. Hearing the Fair Panel conducted hear- ing that privileges clinical were Argued Feb. directly curtailed. The doctors’ informal Decided March conforms in- definition of vestigatory action to pro- assist the review
cess, thus still protected by Aus- McNamara,
tin v. 979 F.2d 736-38
(9th Cir.1992) (holding that the actual deci- suspend
sion to privileges investi-
gatory process leading up decision
were immune HCQIA); under U.S.C.A. 11151(10) (defining professional review
activity). Although the outcome of this does
case not rest on the definition of
“clinical privileges,” we must mindful
the breadth we give this term for future brought
claims
HCQIA.12
under
12. While
privileges"
the term
ophthalmologist's
"clinical
medical-dental staff
11151(3)
used in
leges);
Washington
has
been
County
Gabaldoni v.
Hos-
courts,
interpreted
Association,
by
analyzing
pital
(4th
cases
Cir.2001)
wheth-