Wisner v. Dignity Health(Oct. 18, 2022, C094051) __ Cal.App.5th __ [2022 WL 16706648], certified for partial publication Nov. 4, 2022

Hospital immune from civil liability for reporting to National Practitioner Data Bank that doctor surrendered privileges while under investigation.

Dr. Gary Wisner was criminally charged with making false insurance claims. The Medical Board of California also issued an accusation seeking to revoke or suspend his license for gross negligence and repeated negligent treatment of multiple patients. Six months later, Dr. Wisner asked Dignity Health St. Joseph’s Medical Center (SJMC) to place him on its on-call panel. He held courtesy staff privileges at SJMC, but had not treated patients there for two decades. SJMC’s chief of staff “began an investigation” and asked Dr. Wisner for all available information about the accusation and the indictment. The chief of staff explained that SJMC needed to independently review the evidence to assess the validity and peer review implications of the charges. Dr. Wisner told SJMC he had no additional information to provide, asserted that he was “clearly” not under investigation at SJMC, and “resign[ed] all privileges.” SJMC filed a statutorily mandated report with the National Practitioner Data Bank (NPDB) that Dr. Wisner had surrendered his clinical privileges while under investigation. Dr. Wisner responded by asserting the NPDB report was false and asking the Secretary of the Department of Health and Human Services to review its accuracy. He also sued SJMC for fraud, defamation, and other claims. In the administrative proceeding, the Secretary rejected Dr. Wisner’s challenge, finding no basis for Dr. Wisner’s claim that the report should not have been filed or that it was inaccurate, incomplete, untimely, or irrelevant. In the civil action, the trial court granted SJMC’s anti-SLAPP motion. Dr. Wisner appealed.

The Court of Appeal affirmed. Dr. Wisner conceded that filing an NPDB report is a protected activity, but argued that some of his claims arose from unprotected activity, such as SJMC’s refusal to place him on its call panel, and SJMC’s demand that he exercise his prehearing discovery rights in the Medical Board’s administrative proceeding and provide that discovery to SJMC. The Court of Appeal held that Dr. Wisner forfeited this contention by failing to raise it in the trial court. The Court of Appeal agreed with the trial court that Dr. Wisner could not meet his burden under the anti-SLAPP statute to demonstrate a probability of prevailing on the merits. Under the Health Care Quality Improvement Act (42 U.S.C. § 11101 et seq.), SJMC was immune from liability for making a mandatory NPDB report when a physician surrendered privileges while under investigation. The court rejected Dr. Wisner’s contentions that the meaning of the term “investigation” was a jury question, and that the term should be narrowly construed to mean a formal investigation pursuant to hospital bylaws. Rather, the statutory term had to be construed by the court as a matter of law. Relying on the NPDB Guidebook’s broad definition, the court held that an “investigation” commences as soon as there is a focused “inquiry” into potential misconduct, and therefore the undisputed evidence established that Dr. Wisner was “under investigation” when he resigned. The court explained that allowing hospital bylaws to control the statutory definition of “investigation” would result in ad hoc and inconsistent reporting by health care entities across the nation, thwarting the purpose of the reporting requirement.

The bulletin describing this appellate decision was originally prepared for the California Society for Healthcare Attorneys (CSHA) by H. Thomas Watson and Peder K. Batalden, who are partners at the appellate firm Horvitz & Levy LLP, and is republished with permission.

For more information regarding this bulletin, please contact H. Thomas Watson, Horvitz & Levy LLP, at 818-995-0800 or htwatson@horvitzlevy.com.