James B. Hurwitz, M.D. v. Ahs Hospital Corp. ( 2014 )

                                             SUPERIOR COURT OF NEW JERSEY
                                             APPELLATE DIVISION
                                             DOCKET NO. A-5112-12T2
                                                  APPROVED FOR PUBLICATION
                                                     November 24, 2014
                                                    APPELLATE DIVISION
                Argued October 14, 2014 - Decided November 24, 2014
                Before       Judges   Sabatino,    Simonelli,     and
                On appeal from the Superior Court of New
                Jersey, Law Division, Union County, Docket
                No. L-2194-11.
                Philip F. Mattia argued the cause for
                appellant    (Mattia   &    McBride,    P.C.,
                attorneys; Mr. Mattia, of counsel and on the
                briefs; Alex W. Raybould, on the brief).
                Anthony   Cocca   argued   the    cause   for
                respondents (Bubb, Grogan & Cocca, LLP,
                attorneys; Mr. Cocca, of counsel and on the
                brief; Katelyn E. Cutinello, on the brief).
           The opinion of the court was delivered by
        Improperly pled as Overlook Hospital.
           This litigation arises out of a hospital's internal review
    and investigation of a surgeon after shortcomings were revealed
    in    the    care    that     surgeon     had       provided      to    certain      patients.
    After       extensive    administrative             hearings      conducted      within     the
    hospital, in which the surgeon and his attorney participated,
    the hospital's Board of Trustees revoked the surgeon's clinical
    privileges.           The    surgeon      contended        that        the    actions    taken
    against him by the hospital were arbitrary, unreasonable, and
    unduly punitive.            He sought relief in the trial court, based on
    several legal theories.
           The trial court dismissed the surgeon's lawsuit.                              In doing
    so,    the    court     relied     upon    immunities          from      monetary     damages
    conferred by federal and New Jersey statutes upon hospitals and
    the   participants          in   peer   review        processes        when    evaluating      a
    physician's         performance     and     in       making    decisions         about     that
    physician's clinical privileges.                      See 42 U.S.C.A. §§ 11111 to
    11112 and N.J.S.A. 2A:84A-22.10.                     The court found that plaintiff
    had failed to present sufficient evidence or indicia to overcome
    those       statutory       immunities.             The   court    further       ruled     that
    plaintiff had not justified the taking of depositions, or the
    pursuit       of    other    additional         discovery,        before       the    immunity
    issues were adjudicated.
                                                    2                                     A-5112-12T2
           For the reasons that follow, we affirm the trial court's
    dismissal of plaintiff's complaint, the rejection of his request
    to amend his pleadings a third time to amplify his allegations,
    and    the    court's     determination           that   plaintiff       had    failed    to
    justify additional discovery.              In particular, we concur with the
    trial    court     that    the    hospital        and    the     participants      in    the
    hospital's internal review processes are statutorily immune in
    this case from monetary liability.                       We further agree with the
    court that plaintiff has not identified sufficient grounds to
    establish that the hospital conducted its investigation                           without
    a     reasonable      basis     for    doing       so,    or    that    the     hospital's
    revocation       of     plaintiff's     privileges         was    imposed       without    a
    reasonable belief that such action was in furtherance of quality
    health care objectives.
           Additionally,       we    sustain       the   trial       court's      ruling    that
    plaintiff's conclusory allegations of wrongdoing by the hospital
    and     the   participants        in    the       internal       review    process       are
    insufficient       to    warrant      depositions         or   the     taking    of    other
    additional discovery.              We hold that a challenger's right to
    obtain discovery, particularly depositions, in cases involving
    these immunity statutes is not absolute.                       Instead, the court may
    curtail discovery in its discretion if there are no reasonable
                                                  3                                   A-5112-12T2
    indicia that a factual basis to surmount the immunities will be
           We   derive    the     following      chronology    of       events   from   the
    record,     describing       them   solely     to   the   extent      that   they   are
    pertinent      to    the    case-dispositive        immunity    questions       raised
    before us.2     In doing so, we acknowledge that plaintiff disagrees
    with    some    of     the     hospital's      findings3       of     his    deficient
      Prior to oral argument on the appeal, we invited counsel, sua
    sponte, to submit correspondence addressing confidentiality and
    privacy   issues  bearing   upon   the   disclosure   of   certain
    information   in  the   record.      After   receiving   counsel's
    submissions,   we   granted   defendants'   motion   to   seal   a
    confidential appendix submitted in connection with the appeal,
    which contains materials that the trial court had likewise
    sealed at defendants' request.     Plaintiff did not oppose the
    sealing, provided that if the dismissal of his lawsuit were
    vacated by this court and the case remanded, the appellate
    sealing order would not foreclose his evidential use of the
    contents of the confidential appendix in the trial court.
    Defense counsel agreed with that proviso.     Counsel also agreed
    that this court is not required under the applicable privacy or
    confidentiality laws to use initials or pseudonyms in this
    opinion for plaintiff himself or the names of the persons
    involved in the hospital's internal review process.       However,
    counsel agreed, and we concur, that the names of the patients
    who are mentioned in the confidential appendix should be
    initialized and not revealed.
      Counsel agreed that the findings and recommendations contained
    within the confidential appendix may be freely quoted and
    referred to in this court's opinion.        See, e.g., Wahi v.
    Charleston Area Med. Ctr., Inc., 
    562 F.3d 599
    , 610-11 (4th Cir.
    2009) (quoting from various correspondence and peer review
    committee findings), cert. denied, 
    558 U.S. 1158
    130 S. Ct. 1140
    175 L. Ed. 2d 991
     (2010); see also Poliner v. Tex. Health
                                              4                                   A-5112-12T2
    performance   and    that     he   vigorously    contests         the   sanction    of
    revocation that the Board of Trustees ultimately imposed.
          Initial Review of Plaintiff's Performance and the Temporary
          Suspension of His Privileges
          Plaintiff     James    B.    Hurwitz,    M.D.,    is    a    board-certified
    general surgeon licensed in the State of New Jersey.                      Plaintiff
    has   been   granted    clinical       privileges      at    several     hospitals,
    including    Overlook       Hospital    ("Overlook"     or    "the      hospital"),
    where he first obtained privileges in 1998.
          Eventually,      concerns        arose   regarding          the    care   that
    plaintiff had provided to certain patients at Overlook.                         As a
    result, in June 2010, the hospital's Chief of Surgery referred
    cases of two of plaintiff's patients for review by an outside
    537 F.3d 368
    , 372-73 (5th Cir. 2008) (summarizing the
    findings of an Internal Medicine Advisory Committee and noting
    that the appellant doctor was found to have "(1) poor clinical
    judgment; (2) inadequate skills . . . ; (3) unsatisfactory
    documentation of medical records; and (4) substandard patient
    care"), cert. denied, 
    555 U.S. 1149
    129 S. Ct. 1002
    173 L. Ed. 2d
     315 (2009); Gordon v. Lewistown Hosp., 
    423 F.3d 184
    , 194 (3d
    Cir. 2005) (quoting various findings of the hospital's internal
    hearing officer's report as well as other communications
    exchanged between the chairman of the credentials committee and
    the appellant doctor), cert. denied, 
    547 U.S. 1092
    126 S. Ct. 1777
    164 L. Ed. 2d 557
     (2006); Singh v. Blue Cross/Blue Shield
    of Mass., Inc., 
    308 F.3d 25
    , 29-30 (1st Cir. 2002) (freely
    quoting from an internal "audit" of the appellant doctor's
    performance, which stated that "competent expert care was rarely
    seen" and that "documented treatment showed evidence of care
    somewhat below recognized standards of care").
                                             5                                  A-5112-12T2
    expert,    a    faculty       member    at    New    York       University        School    of
    Medicine.       The outside reviewer is not affiliated with Overlook.
    Plaintiff was not concurrently informed that those cases had
    been sent out for review.
        The        outside    reviewer       issued      a     report     in    August     2010,
    opining    that,       with    respect       to    one    of    the   two    patients       in
    question, plaintiff had not been "proactive in managing [the
    patient's] care" and also that he had failed to "intervene when
    the clinical situation required."                   The reviewer reached similar
    conclusions with respect to the second patient.                              The reviewer
    recommended          "counseling,       monitoring,            and    consideration         of
    restricting [plaintiff's] clinical privileges[,]" and if such
    measures       had    already    been     taken,         "terminating       [plaintiff's]
    privileges at Overlook Hospital."
        Soon       thereafter,       on    September         29,    2010,      the    hospital's
    Medical     Executive         Committee       ("MEC")          convened      to    consider
    authorizing an internal investigation into plaintiff's clinical
    competence.          On that same day, the twenty-six MEC members in
    attendance      unanimously       voted       in    favor      of    commencing      such    a
    formal investigation.
        The next day, September 30, 2010, the                             president of the
    hospital's medical staff issued a letter to plaintiff, notifying
    him that the MEC had begun the investigation.                           As a consequence
                                                  6                                     A-5112-12T2
    of    the     pending   investigation,              the    president        temporarily
    suspended     plaintiff's       clinical      privileges.            This       temporary
    suspension was imposed pursuant to the hospital's bylaws.
          The Chancery Division Action
          Less than a week later, on October 1, 2010, plaintiff filed
    an action in the Chancery Division seeking injunctive relief to
    restrain and enjoin the hospital from suspending his privileges.
    Plaintiff     then   filed   an    amended          complaint       in    the   Chancery
    action, adding as a co-defendant the hospital's medical staff
    ("the Medical Staff").          The hospital and the Medical Staff filed
    opposition to the injunctive application.
          After hearing initial oral argument, the Chancery Division
    judge presiding over the matter, Hon. John F. Malone, granted
    plaintiff's      request     for    certain           expedited          discovery     and
    scheduled     further   argument     on       the    injunction.           Among     other
    things, Judge Malone directed defendants to provide plaintiff
    with a copy of the hospital's bylaws, written notice of the
    reasons for any adverse action taken or proposed, results of any
    investigation taken, medical charts, records, and any written
    report of the hospital's findings, including a "recitation of
    the [hospital's] actions and recommendations . . . and the basis
    for   [plaintiff's]     summary     suspension            without    [a]    hearing[.]"
    The   judge    declined    to    issue     temporary         restraints         restoring
                                              7                                      A-5112-12T2
    plaintiff's      privileges.               Certain        paper      discovery,    including
    responses       to        interrogatories,           apparently          were     thereafter
    provided in the Chancery action, but no depositions were taken.
          The Investigating Committee's Review
          Meanwhile,          as     a    follow-up      to        the   September     2010       MEC
    meeting, the hospital created an Ad Hoc Investigating Committee
    ("the Investigating Committee"), appointed by the Medical Staff,
    to undertake the investigation and to submit a report with its
    findings and recommendations to the MEC.                             Five physicians were
    named   to    the         Investigating         Committee.             The    Investigating
    Committee met several times between October 2010 and December
    2010.   Plaintiff was invited to provide written submissions, and
    he did so in a letter from his counsel and also in his own
    separate      letter.                 Plaintiff       declined,          however,          three
    opportunities to meet with the Investigating Committee in person
    and to answer questions.
          On December 20, 2010, the Investigating Committee issued
    its   report,    along         with       various    recommendations.             The     report
    noted that the Committee had reviewed plaintiff's care that he
    had   provided       to    six       patients      over    a    year-and-a-half         period.
    Based   on   its      review         of    those    six     cases,      the   Investigating
    Committee       reached          certain        unfavorable           conclusions.             In
    particular, its report found that plaintiff's care was "notable
                                                    8                                       A-5112-12T2
    for poor documentation of care plans and delays in managing
    complications of surgery, which resulted in adverse outcomes."
    Given its findings, the Investigating Committee presented the
    following recommendation:
                  Our recommendation is to remove [plaintiff]
                  from the ER [Emergency Room] call schedule
                  and to institute ad hoc review of 25
                  inpatient surgical cases [in which plaintiff
                  had acted] as primary surgeon by the
                  Surgical   Care   Review  Committee.      If
                  [plaintiff's] performance of the cases were
                  felt to be adequate, he would be able to
                  return to the ER roster.
        Dismissal of the Chancery Action
        The hospital then filed a motion to dismiss plaintiff's
    Chancery action, in lieu of an answer, for failure to state a
    claim upon which relief can be granted, pursuant to Rule 4:6-
    2(e).    That motion was granted on January 21, 2011.4
        On the same day that Judge Malone granted the hospital's
    motion   to    dismiss   the   Chancery   action,   the   MEC   issued    its
    decision based on the Investigating Committee's report.                  In a
    letter dated January 21, 2011, the MEC informed plaintiff that
    it had voted to impose a continued suspension of his privileges,
      The dismissal order recites that the Chancery action was
    dismissed "with prejudice," although the parties and the trial
    court did not treat the dismissal of the Chancery Division as a
    bar to plaintiff's subsequent litigation in the Law Division.
                                         9                             A-5112-12T2
    subject to various terms and conditions.         Specifically, the MEC
    stated as follows:
                 After     thoughtful    consideration     and
                 deliberation, the MEC voted to impose an
                 additional   suspension  of   your   clinical
                 privileges commencing upon your receipt of
                 this notice for a minimum of three (3)
                 months or until such time as you complete
                 professional    courses  at    your   expense
                 approved by the MEC addressing Medical
                 Ethics and Professionalism, Medical Record
                 Documentation and General Surgical Review.
                 Upon completion of the suspension, your
                 clinical privileges will be reinstated at
                 which time you will be required to undergo a
                 concurrent review of twenty-five (25) cases
                 by a supervising surgeon assigned by the
                 Chairman of the Department of Surgery.
                 During the concurrent review, you will be
                 ineligible for the Emergency Department on-
                 call schedule, you will not be provided
                 routine resident coverage for your patients,
                 and any and all elective cases will require
                 review and approval by the Chairman of the
                 Department of Surgery prior to scheduling a
                 patient for the OR [Operating Room]        or
                 otherwise admitting a patient to Overlook
                 [(Emphasis added).]
    A   little    less   than   a   month   later,   Judge   Malone    denied
    plaintiff's outstanding motion for a preliminary injunction.5
      The parties do not explain why the trial court issued an order
    denying plaintiff a preliminary injunction after the Chancery
    action was already dismissed, although we suspect that denial of
    the outstanding motion was issued for housekeeping reasons.
                                       10                             A-5112-12T2
          Plaintiff's Law Division Complaint
          Although       it   is   not   entirely      clear   from     the   record,
    plaintiff apparently filed a new or a reinstated complaint in
    the Law Division some time between January 2011 and November
    2011.     Despite the fact that the Chancery action had already
    been dismissed in January 2011, plaintiff obtained an order in
    May 2011 "transferring" his case from the Chancery Division to
    the Law Division.           Plaintiff also requested that his case be
    reassigned to the complex commercial track, pursuant to Rule
    4:5A-2(b), so as to enable a lengthier period for discovery.
    That tracking request was granted.
          In November 2011, the hospital moved to dismiss plaintiff's
    Law Division complaint, without prejudice, "pending a resolution
    or completion of the hospital['s] hearing and appeal process."
    The hospital noted that, under its applicable bylaws, plaintiff
    was entitled to a formal internal hearing to contest the MEC's
    investigative findings and recommendations.                In fact, plaintiff
    had already requested such an internal hearing under the bylaws,
    and that hearing had begun.
          Plaintiff did not oppose a without-prejudice dismissal of
    his     Law   Division      action   at    that    time.       As   his   counsel
    represented     to    us,   plaintiff     agreed   to   such   a    dismissal     to
    accommodate the hospital's internal administrative procedures,
                                              11                              A-5112-12T2
    in light of the costs and burdens of challenging the hospital's
    actions in two separate proceedings at the same time.
           Consequently,     plaintiff    and    the    hospital    entered    into    a
    Consent Order on January 19, 2012, dismissing plaintiff's Law
    Division      action,    expressly     "without      prejudice,"     pending       a
    resolution or completion of the hospital's internal hearing and
    appeals process.        Pursuant to the terms of the Consent Order,
    plaintiff was permitted to reinstate his amended complaint in
    the Law Division "without regard to any statute of limitations
    issues."      Aside from this, the Consent Order specified that the
    parties      "reserve[d]   all      rights    concerning       the   claims     and
           The Hospital's Internal Hearings
           The hospital's internal hearings began in June 2011.                   After
    a substantial delay of eight months due to scheduling conflicts
    of plaintiff's counsel, the hearings were resumed and completed
    February 2012.
           The   hearing    panel    consisted     of   three   physicians      and    a
    presiding member from an outside organization.                   Both plaintiff
    and the MEC were represented by counsel.                 We are advised that
    fact   and    expert    witnesses    for     both   parties    presented      sworn
                                           12                                 A-5112-12T2
    testimony to the panel, and were subject to cross-examination.6
    Documents     were       presented    into      evidence,   including   medical
    records of the specific patients whose cases were the subject of
    the    MEC   investigation.          The    parties    submitted   post-hearing
    briefs for the panel's consideration.                  A certified shorthand
    reporter prepared a verbatim transcript of the hearings.7
           On May 2, 2012, the hearing panel issued its report.                   The
    panel concluded that plaintiff had been deficient in his care
    and treatment of the four patients whose cases it had reviewed.
    With    regard      to    those   patients,      the   panel    concluded    that
    plaintiff     "in    various      respects,      demonstrated    poor   surgical
    judgment, a lack of attentiveness to patients, untimely post-
    operative management of surgical complications and/or a failure
    to document thought processes and plans of care."                  In addition,
    the panel faulted plaintiff for, as it found, entering a note in
      In particular, we were advised at oral argument that plaintiff
    himself testified at the hearing and that he presented his own
    expert witness, although the limited record supplied to us is
    insufficient to confirm this.
      We have not been furnished with the hearing transcripts, but,
    as we explain, infra, they are not essential to our review of
    the legal issues being presented on this appeal.
                                               13                           A-5112-12T2
    the   chart   of     one      of    those    four      patients,      which   "falsely
    indicated that [plaintiff] had met with the patient's mother."8
          Based   on        its    factual       findings,         the    hearing      panel
    recommended   that       the   terms    of       plaintiff's    suspension      as    set
    forth by the MEC should be adopted.                     The panel also indicated
    that more stringent sanctions beyond such a suspension were not
    warranted.       More    specifically,           the   panel   recommended      in    its
    written report, in pertinent part:
              3.   [T]hat the suspension of [plaintiff's]
              clinical privileges and other restrictions
              imposed by the MEC were fair and reasonably
              necessary to protect the health and safety
              of patients . . . . [and]
                       . . . .
              5.   The   record  does  not   support the
              imposition    of  greater    sanctions  on
              [plaintiff] than those imposed by the MEC,
              including the revocation of his clinical
          The Board of Trustees' Revocation of Plaintiff's Privileges
          Pursuant     to    the       hospital's      bylaws,      the   hearing      panel
    forwarded its report to the Board of Trustees.                           Focusing in
    particular    upon      the    hearing       panel's     discrete      finding       that
    plaintiff had falsified a patient record, the Board of Trustees
      We were advised at oral argument that the hearing panel
    apparently found the testimony of the patient's mother more
    credible than that of plaintiff on the disputed question of
    whether such consultation had taken place.
                                                14                                  A-5112-12T2
    revoked      his   clinical     privileges,       effective     immediately.       It
    conveyed that decision in a letter to plaintiff dated July 26,
    2012.       Plaintiff did not pursue any further appeal within the
    hospital of the Board of Trustees' decision, although the bylaws
    entitled him to appeal the decision to a "Review Panel composed
    of not fewer than three persons."
           Plaintiff's Motion to Reinstate His Law Division Case and
           Defendants' Motion to Dismiss
           After the Board of Trustees informed him of its decision to
    revoke his privileges, plaintiff moved to reinstate his action
    in the Law Division but simultaneously moved to file a proposed
    Second Amended Complaint.              His pleadings, as originally framed
    and    then    revised    in    the    proposed    Second     Amended    Complaint,
    asserted several legal theories for the recovery of damages,
    including breach of contract, breach of the implied covenant of
    good faith and fair dealing, and violation of plaintiff's due
    process rights.9          Defendants opposed the reinstatement motion.
    They    argued,     among      other   things,     that   the    proposed    Second
    Amended Complaint failed to state a cause of action as a matter
    of    law     because    of    defendants'     federal    and    state    statutory
      In his last proposed amended complaint, plaintiff ultimately
    amended this allegation, given the absence of State action by
    defendants, to a claim of violation of "fundamental fairness."
                                              15                                A-5112-12T2
         After hearing oral argument, the Presiding Judge of the Law
    Division, Hon. Kenneth J. Grispin, entered an order on March 12,
    2013, accompanied by a written Statement of Reasons, denying
    plaintiff's         reinstatement       motion,          without         prejudice.
    Specifically, Judge Grispin found in his Statement of Reasons
    that plaintiff's proposed Second Amended Complaint:
                [f]ailed to plead malice on the part of the
                hospital, or its staff, which was required
                to rebut the presumption of reasonableness
                pursuant  to   [42]  U.S.C.A.  §   11112(a).
                Moreover,  [plaintiff's]  proposed   amended
                complaint fails to state a cause of action
                as to the Board for the very same reasons
                . . . .    Similarly, [plaintiff's] alleged
                "due process" claim, contained in Count
                Three of the proposed amended complaint,
                cannot be sustained against a non-profit
         Thereafter, plaintiff filed a motion                 for reconsideration
    and for leave to file a further amendment to his Law Division
    complaint.     In support of his motion,               plaintiff submitted a
    proposed    Third    Amended    Complaint      naming     as    defendants          "AHS
    Hospital Corp.10 Board of Trustees."            The proposed pleading also
    names    various    fictitiously-named       parties     who    have     yet     to   be
         Following      another    round   of    oral   argument,      Judge       Grispin
    denied   plaintiff's     motion   for    reconsideration.           In    a     second
       AHS Hospital Corporation            evidently    is    the    legal     name       of
    Overlook Hospital.
                                            16                                     A-5112-12T2
    Statement of Reasons dated May 27, 2013, Judge Grispin concluded
    that plaintiff's proposed Third Amended Complaint still "failed
    to articulate sufficient facts which would demonstrate malice on
    the part of Overlook which unjustly prejudiced [plaintiff] or
    that the internal administrative hearing process was arbitrary
    or capricious."         The judge granted defendants' cross-motion to
    dismiss the Law Division action, conclusively, specifying that
    the dismissal was "with prejudice."
          The Contentions on Appeal
          On appeal, plaintiff contends that the trial court acted
    prematurely   in    enforcing       defendants'       claimed    immunities.       He
    argues that the court should have afforded him an opportunity to
    conduct   depositions,        which    he    asserts     might    have     uncovered
    admissible    evidence        to    overcome     the    immunities        and   which
    potentially could demonstrate that defendants acted maliciously,
    arbitrarily, or unreasonably.            Although his counsel acknowledged
    at the appellate oral argument that plaintiff had not handled
    the patient cases in question "perfectly," and that some degree
    of    "remediation"      of   his     conduct    is    appropriate,        plaintiff
    asserts that the sanction of revocation imposed by the Board of
    Trustees is unduly harsh.
          Plaintiff argues that the Board of Trustees' imposition of
    the   sanction     of   revocation,      which    is    more     severe    than   the
                                            17                                  A-5112-12T2
    conditional suspension recommended by the MEC and the hearing
    panel, circumstantially shows that the Board of Trustees engaged
    here in arbitrary and unreasonable decision-making.                   Plaintiff
    also contends that the hospital and its agents waived in the
    Consent Order their ability to oppose the reinstatement of his
        Plaintiff therefore urges that the trial court's dismissal
    order be vacated.      In particular, he seeks to have his lawsuit
    reinstated for the completion of discovery and for a decision on
    the merits with a fuller record.
        In     response,   defendants     maintain      that   the   trial    court
    correctly enforced the terms mandated by and the public policies
    reflected in the federal and state immunity statutes.                     Those
    statutes,    defendants     emphasize,     are      designed     to     protect
    hospitals and the participants in internal peer reviews from
    having monetary liability to doctors who are sanctioned as a
    result of such internal processes.            Defendants further submit
    that they did not waive in the Consent Order their right to
    oppose a reinstatement of plaintiff's lawsuit on legal grounds,
    here being the substantive immunities they are afforded under
    the federal and state statutes.
        Defendants    further    assert    that   the    trial   court     sensibly
    rejected    plaintiff's   request     to   conduct    depositions        and   to
                                          18                               A-5112-12T2
    pursue other discovery.            They maintain there is no indication in
    the   record,    apart      from     plaintiff's      conclusory        assertions        and
    suspicions,      that      the   hospital     or    its   representatives         engaged
    here in the sort of ill-founded or nefarious behavior that could
    nullify their statutory immunities.
          The    critical        focus    of     this     appeal     centers      upon        the
    application of the federal and state immunities that have been
    invoked     by   defendants.            We        begin   our    analysis        with      an
    examination of the federal statutory provisions, 42 U.S.C.A. §§
    11111 to 11112.
          The federal immunities are part of the larger Healthcare
    Quality Improvement Act of 1986 ("HCQIA"), 42 U.S.C.A. §§ 11101
    to    11152,     which      provides,       in      relevant     part,     that      in     a
    "professional review action of a professional review body . . .
    (A) the professional review body, (B) any person acting as a
    member or staff to the body, (C) any person under a contract or
    other formal agreement with the body, and (D) any person who
    participates        with    or   assists      the    body    with      respect    to      the
    action"     shall    not    be   liable      in    damages     under    any   law    "with
    respect to [any review] action," 42 U.S.C.A. § 11111(a)(1), if
    the review action is taken:
                                                 19                                   A-5112-12T2
                (1) in the reasonable belief that the
                action was in the furtherance of quality
                health care,
                (2) after a reasonable effort to obtain the
                facts of the matter,
                (3) after    adequate  notice   and   hearing
                procedures are afforded to the physician
                involved or after such other procedures as
                are   fair  to   the  physician   under   the
                circumstances, and
                (4) in the reasonable belief that the
                action was warranted by the facts known
                after such reasonable effort to obtain facts
                and   after   meeting  the   requirement  of
                paragraph (3).
                [42 U.S.C.A. § 11112(a).]
          A "professional review body," as that term is used in the
    HCQIA, is broadly defined.            The term encompasses "a health care
    entity and the governing body or any committee of a health care
    entity which conducts professional review activity, and includes
    any   committee   of   the    medical    staff    of   such   an   entity    when
    assisting the governing body in a professional review activity."
    42 U.S.C.A. § 11151(11).
          A   "professional      review    action,"   defined     earlier   in    the
    HCQIA, consists of:
                an    action   or   recommendation   of   a
                professional review body which is taken or
                made in the conduct of professional review
                activity, which is based on the competence
                or professional conduct of an individual
                physician (which conduct affects or could
                affect adversely the health or welfare of a
                                            20                              A-5112-12T2
                patient or patients), and which affects (or
                may    affect)   adversely    the   clinical
                privileges, or membership in a professional
                society, of the physician.        Such term
                includes a formal decision of a professional
                review body not to take an action or make a
                recommendation described in the previous
                sentence and also includes professional
                review activities relating to a professional
                review action.
                [42 U.S.C.A. § 11151(9) (emphasis added).]
           Further, the HCQIA defines "professional review activity"
    to cover any activity of a health care entity with respect to an
    individual      physician     conducted    "(A)     to   determine     whether     the
    physician    may      have    clinical    privileges     with    respect     to,    or
    membership      in,     the   entity,    (B)   to    determine       the   scope    or
    conditions of such privileges or membership, or (C) to change or
    modify such privileges or membership."               42 U.S.C.A. § 11151(10).
           Significantly, the HCQIA imposes a rebuttable presumption
    that   an   adverse      professional     review     action     undertaken     by    a
    hospital against a physician is protected by the immunity.                          As
    the statute recites, "[a] professional review action shall be
    presumed to have met the preceding standards necessary for the
    protection set out in section [42 U.S.C.A. § 11111(a)] unless
    the presumption is rebutted by a preponderance of the evidence."
    42 U.S.C.A. § 11112(a).             The only specified qualification to
    this    broad      immunity     coverage,      then,       is   if    a    plaintiff
    demonstrates,      by    a    preponderance    of    the    evidence,      that    the
                                              21                                A-5112-12T2
    defendant took action without a reasonable belief in initiating
    the   action,    failed    to   provide    adequate   notice     and    hearing
    procedures, or otherwise took action without a reasonable belief
    it was warranted by the facts after a reasonable investigation.
    See 42 U.S.C.A. § 11112(a)(1) to -(4).
          "HCQIA    immunity   is   a   question   of   law   for   the    court   to
    decide and may be resolved whenever the record in a particular
    case becomes sufficiently developed."           Bryan v. James E. Holmes
    Reg'l Med. Ctr., 
    33 F.3d 1318
    , 1332 (11th Cir. 1994) (emphasis
    added), cert. denied, 
    514 U.S. 1019
    115 S. Ct. 1363
    131 L. Ed. 2d
     220 (1995).      As the House of Representatives Committee that
    took part in the HCQIA's passage explained:
               The [immunity] provisions would allow a
               court to make a determination that the
               defendant has or has not met the standards
               specified   in   section  [11112(a)].     The
               Committee intends that the court could so
               rule even though other issues in the case
               remain to be resolved. For example, a court
               might determine at an early stage of
               litigation that the defendant has met the
               [section 11112(a)] standards, even though
               the plaintiff might be able to demonstrate
               that the professional review action was
               otherwise improper. At that point, it would
               be in order for the court to rule on
               immunity.   In such a case, the court could
               still    proceed    to   determine    whether
               injunctive, declaratory, or other relief
               would be in order.
               [Ibid. (quoting H.R. Rep. No. 99-903, at 12
               (1986), reprinted in 1986 U.S.C.C.A.N. 6394
               (emphasis added)).]
                                          22                                A-5112-12T2
          This   immunity      from    monetary      liability    has     been    enforced
    repeatedly    by     the       federal    and     state     courts,      aside    from
    exceptional       instances      where   the     immunity    has    been     overcome.
    See, e.g., Osuagwu v. Gila Reg'l Med. Ctr., 
    850 F. Supp. 2d 1216
    , 1239 (D.N.M. 2012) (finding that HCQIA immunity should not
    apply because plaintiff was not "given a fair opportunity to
    confront and cross-examine the anonymous physicians who prepared
    the peer-review forms," and because the peer review panel was
    not impartial, given that one of the reviewers was an "accuser,
    investigator, prosecutor, and one of [the plaintiff's] judges
    [at the hearing]"); see also Colantonio v. Mercy Med. Ctr., 
    901 N.Y.S.2d 370
    , 374 (App. Div. 2010) (finding that the defendants
    were not clearly entitled to immunity because there remained a
    "triable issue of fact as to whether, at the meeting of the
    Committee,        some         defendants        knowingly      provided         false
          Recognizing        the    strong   legislative      policy    underlying       42
    U.S.C.A. § 11111, the Eleventh Circuit has cautioned that the
    proper role of courts on review of peer review decisions "is not
    to substitute our judgment for that of the hospital's governing
    board   or   to    reweigh      the    evidence    regarding       the   renewal     or
    termination of medical staff privileges."                   Bryan, supra, 33 F.3d
    at   1337.    Other       courts      applying    the   statute     have     expressed
                                              23                                  A-5112-12T2
    comparable   deference     to   hospitals,     their    peer    reviewers,       and
    their internal decision-makers.            See, e.g., Harris v. Bradley
    Mem. Hosp. & Health Ctr., 
    50 A.3d 841
    , 858 (Conn. 2012) (noting
    that in enacting the HCQIA, Congress intended to "resolve the
    question of immunity under the federal act as early as possible
    and   to   reinforce     judicial    deference     to    hospital         decision-
    making"), cert. denied, 
    133 S. Ct. 1809
    185 L. Ed. 2d 812
          Similar   public    policies     are     reflected       in   our    State's
    cognate    immunity    statute,     N.J.S.A.    2A:84A-22.10.             Like   the
    federal law, the New Jersey statute provides broad immunity for
    damages to qualified persons for actions taken as part of a
    hospital's peer review process.            As is relevant here, N.J.S.A.
    2A:84A-22.10 provides that:
                Any person who serves as a member of, is
                staff to, under a contract or other formal
                agreement   with,   participates   with, or
                assists with respect to an action of:
                    . . . .
                d.   A hospital peer review committee having
                the responsibility for the review . . . of
                matters concerning the limiting the scope of
                hospital privileges . . .
                     . . . .
                shall not be liable in damages to any person
                for any action taken or recommendation made
                by him within the scope of his function with
                the committee, subcommittee or society in
                                          24                                   A-5112-12T2
                 the performance of said peer-review, ethics,
                 grievance, judicial, quality assurance or
                 professional relations review function, if
                 such action or recommendation was taken or
                 made without malice and in the reasonable
                 belief after reasonable investigation that
                 such action or recommendation was warranted
                 upon the basis of facts disclosed.
                 [(Emphasis added).]
           Although N.J.S.A. 2A:84A-22.10 was adopted in 1979, it has
    been cited only infrequently in published case law, at times
    just    in   passing.11    None    of    those   cases   has   specifically
    addressed    the   legal   questions    presented   here   concerning    the
    evidentiary burden of a party seeking to overcome the immunity,
    and what, if any, discovery, such a challenger is entitled to
    obtain before the trial court rules on a defendant's motion to
    dismiss based upon the New Jersey immunity.12
       See, e.g., Patel v. Soriano, 
    369 N.J. Super. 192
    , 251 n.15
    (App. Div.) (noting the statutory immunity provided to a
    "hospital performing its credentialing function on applicants
    for surgical privileges"), certif. denied, 
    182 N.J. 141
    see also Bainhauer v. Manoukian, 
    215 N.J. Super. 9
    , 38 (App.
    Div. 1987) (mentioning the conditional privilege afforded to
    physicians involved in hospital peer review but resolving the
    underlying lawsuit on other grounds).
       If, in fact, the federal immunity protects defendants, then
    there is no need to reach the application of the overlapping
    state-law immunity.
                                        25                             A-5112-12T2
         Having canvassed these key aspects of the federal and state
    immunity statutes, we now consider the propriety of the trial
    court's    dismissal     of    plaintiff's       complaint    seeking      monetary
    damages.13     We also examine the related question of whether the
    court's enforcement of defendants' immunities, thereby leaving
    plaintiff      without   further    discovery,        was   premature.       Before
    delving into that analysis, we dispose first of two procedural
         First,     we   reject     plaintiff's      argument    that    the    Consent
    Order should be construed as a waiver of defendants' right,
    based     on   their     federal   and        state    immunities,    to     oppose
    plaintiff's claims.           The terms of the Consent Order cannot be
    reasonably interpreted to bar defendants from interposing their
    immunity arguments.           The plain language of the Consent Order
    provides that the parties "reserve all rights concerning the
    claims and defenses." (emphasis added).
         A consent order is, in essence, an agreement of the parties
    that has been approved by the court.                  As the Supreme Court has
      Plaintiff's complaint in the Law Division deleted his request
    that he had made earlier in the Chancery Division for the
    equitable relief of reinstatement of his clinical privileges.
    Hence, the only specified relief that he now seeks is monetary
                                             26                                A-5112-12T2
    consistently noted, one of the "'fundamental canons of contract
    construction require that we examine the plain language of the
    contract and the parties' intent, as evidenced by the contract's
    purpose and surrounding circumstances.'"              Highland Lakes Country
    Club   &   Cmty.,    Ass'n   v.   Franzino,    
    186 N.J. 99
    ,   115     (2006)
    (quoting State Troopers Fraternal Ass'n v. New Jersey, 
    149 N.J. 38
    , 47 (1997) (citations omitted)).             The plain language of the
    Consent Order here is not ambiguous, nor is it obscured by the
    surrounding circumstances.           Defendants clearly did not forfeit
    in   the   Consent   Order   their    right    to    invoke   their   statutory
    immunities,    or    their   right    to    invoke    them    as   soon   as    the
    litigation was reactivated.
           Moreover, our Court Rules explicitly state that a request
    to dismiss for failure to state a claim "may be made in any
    pleading permitted or ordered or by motion for summary judgment
    or at the trial on the merits."               R. 4:6-7 (emphasis added).
    Thus, by its very terms, Rule 4:6-7 permits a party to raise the
    defense of a failure to state a claim as late as trial, as well
    as sooner on motion.         See Buteas v. Raritan Lodge No. 
    61 F.
    248 N.J. Super. 351
     (App. Div. 1991); see also Pressler &
    Verniero, Current N.J. Court Rules, cmt. 1 on R. 4:6-7 (2015)
    (stating that a defense under Rule 4:6-2(e) "may be raised as
    late as trial").       We further note that defendants did, in fact,
                                           27                                 A-5112-12T2
    assert the defense of failure to state a claim in response to
    plaintiff's amended verified complaint that he had filed earlier
    in   the    Law   Division,      albeit    in    a   footnote    in    their    motion
    papers, before the Consent Order was entered.
           We recognize that defendants agreed in the Consent Order
    that plaintiff could reinstate his amended complaint.                       However,
    as plaintiff stated at the appellate argument, he sought to
    "reinstate"       not   his    First    Amended      Complaint   but    his     Second
    Amended Complaint.             In any event, had defendants acceded to
    reinstatement of his First Amended Complaint and then opposed
    further amendment or moved to dismiss, the end result would have
    been the same.
           A second preliminary facet that we must                    address is the
    appropriate procedural context in which to evaluate defendants'
    case-dispositive motion.               To be sure, defendants' motion was
    couched as a motion to dismiss under Rule 4:6-2(e) for failure
    to state a claim upon which relief may be granted.                          However,
    both parties in their submissions respecting that motion, as
    well   as   the    trial      court,   made     reference   to   and    relied     upon
    documentary       materials      from     the     hospital's     internal       review
    process.      Those materials were beyond the four corners of the
    complaint, although excerpts of them were quoted or referred to
                                              28                                   A-5112-12T2
    in the complaint. In his ruling, the judge at times referred to
    the entire record presented to him, which clearly went beyond
    the discrete excerpts quoted and otherwise referred to in the
    pleadings.   As such, defendants' motion to dismiss most properly
    should be conceived as a dismissal motion converted to a motion
    for summary judgment under Rule 4:46-1 to -6, as is permitted
    under the last sentence of Rule 4:6-2.14
         Viewed properly in this more expansive context, we must
    evaluate the record before us under the customary standards of
    summary judgment practice.        See Brill v. Guardian Life Ins. Co.
    of Am., 
    142 N.J. 520
    , 540 (1995).        In particular, we are to read
    the record in a light most favorable to plaintiff and accord all
    favorable inferences to plaintiff that can be reasonably drawn
    from that record.    See R. 4:46-2; Brill, supra, 142 N.J. at 540;
    see also Murray v. Plainfield Rescue Squad, 
    210 N.J. 581
    , 584
    (2012)   (applying   the   same   Rule   4:46   standards   on   appellate
    review of a summary judgment order).            Upon doing so, we are
    satisfied, for the reasons we explain, infra, that the trial
       R. 4:6-2 ("If, on a motion to dismiss based on the defense
    numbered (e), matters outside the pleading are presented to and
    not excluded by the court, the motion shall be treated as one
    for summary judgment and disposed of as provided by R. 4:46, and
    all parties shall be given reasonable opportunity to present all
    material pertinent to such a motion.").
                                        29                            A-5112-12T2
    court's entry of final judgment in defendants' favor was sound
    and not premature.15
          We turn to the substance of the immunity arguments.                       Even
    viewing the record in a light most favorable to plaintiff, we
    agree    with    Judge      Grispin    that   defendants      are    entitled       to
    immunity from damages as a matter of federal and New Jersey
    statutory   law,      and    that     plaintiff    has   failed     to    present    a
    sufficient basis to vault those immunities.
          As Judge Grispin correctly found, defendants are clearly
    within the presumptive scope of the federal immunity under the
    HCQIA.          The   hospital's        internal     review     of       plaintiff's
    performance      unquestionably        comprises     a   "professional        review
    activity" under 42 U.S.C.A. § 11151(10).                    The participants in
    the   review,     including     the     Medical    Staff,     the    Investigating
    Committee, the MEC, the hearing panel, and the Board of Trustees
    are all "professional review bodies" within the ambit of the
       Even if, for the sake of discussion, the standards for
    dismissal under Rule 4:6-2(e) are applied here rather than the
    summary judgment standards, see, e.g., Printing Mart-Morristown
    v. Sharp Elecs. Corp., 
    116 N.J. 739
    , 746 (1989), we remain
    persuaded that the immunity statutes control this case and
    mandate dismissal of the lawsuit.       "A pleading should be
    dismissed if it states no basis for relief and discovery would
    not provide one."    Rezem Family Assocs., L.P. v. Borough of
    423 N.J. Super. 103
    , 113 (App. Div.), certif. denied,
    208 N.J. 366
                                             30                                 A-5112-12T2
    statute.           See    42     U.S.C.A.           §        11151(11).          The     various
    recommendations and decisions to impose sanctions upon plaintiff
    —— initially a recommended suspension and ultimately the Board
    of Trustees' revocation of plaintiff's clinical privileges ——
    comprise      "professional           review    actions"          as   defined         under    42
    U.S.C.A. § 11151(9), because they adversely affected plaintiff's
    status at the hospital.
           As     we   have     already      noted,              defendants    and     the     other
    participants       in     the    hospital's             internal    review       process       are
    presumptively immune under the HCQIA from monetary damages if
    they acted in "the reasonable belief that the[ir] action[s] were
    in    the   furtherance         of    quality       health        care,"    42    U.S.C.A.       §
    11112(a)(1), "after a reasonable effort to obtain the facts of
    the matter," 42 U.S.C.A. § 11112(a)(2), after "adequate notice
    and hearing procedures are afforded to the physician . . . or
    after such other procedures as are fair to the physician under
    the    circumstances,"          42    U.S.C.A.           §    11112(a)(3),       and     with    a
    "reasonable belief that the action was warranted by the facts
    known after such reasonable effort to obtain facts" and after
    appropriate        notice       and     fair    procedures.                42     U.S.C.A.       §
           More    simply     stated,       the     federal          immunity       presumptively
    governs this case, so long as the hospital and its participants
                                                   31                                       A-5112-12T2
    proceeded in a fair and reasonable manner and with a reasonable
    belief that the actions taken were in furtherance of quality
    health care and warranted by the facts.                          The record provides no
    evidence,         nor    even    a    plausible          indication,        that    defendants
    failed       to     comport          with        these      norms      of     fairness         and
    reasonableness.           Plaintiff failed to carry his burden to rebut
    the presumption, or even create a material issue of fact.
           The    judicial          power       to    intervene       in    disputes        over     a
    physician's clinical privileges is circumscribed.                             As this court
    held   almost       thirty       years       ago       in   an   opinion     coincidentally
    involving another physician whose privileges had been terminated
    at Overlook, "[j]udicial review of hospital decisions regarding
    admission to medical staff, extent of privileges and termination
    is very limited."            Zoneraich v. Overlook Hosp., 
    212 N.J. Super. 83
    ,    90    (App.       Div.),       certif.          denied,   
    107 N.J. 32
    "Hospital officials are vested with wide managerial discretion,
    to be used to elevate hospital standards and to better medical
    care."       Ibid. (citing Greisman v. Newcomb Hosp., 
    40 N.J. 389
    403 (1963)).            "So long as hospital decisions concerning medical
    staff are reasonable, are consist[e]nt with the public interest,
    and further the health care mission of the hospital, the courts
    will not interfere."                 Ibid. (citing Desai v. St. Barnabus Med.
    103 N.J. 79
     (1986), and Belmar v. Cipolla, 
    96 N.J. 199
                                                      32                                    A-5112-12T2
    208   (1984)).          Although     Zoneraich     did      not     involve       the    HCQIA
    (which, as it so happened, was enacted by Congress that same
    year), these same general principles pertain in applying that
    federal immunity.
          That      said,      our   courts    have        also      recognized        that    "a
    physician is entitled to fundamentally fair procedures in a non-
    profit hospital's consideration of staff membership, the extent
    of privileges and termination."                  Id. at 91.           Accordingly, the
    hospital seeking to suspend or oust a physician must provide
    notice     to    the     affected      physician       of     the     charges       or     the
    hospital's proposed action before an internal hearing.                                   Ibid.
    "The tribunal must be fair and unbiased."                        Ibid.     The physician
    has   a    qualified       right     to   retain       counsel       and    a     right    to
    disclosure of certain information, "limited by recognition of
    competing       rights     to    privilege      and    confidentiality."                 Ibid.
    (emphasis       added)     (citing     Garrow     v.     Elizabeth         Gen.    Hosp.     &
    79 N.J. 549
    , 566-68 (1979)).
          As our Supreme Court noted in Garrow and we reiterated in
    Zoneraich, "[j]udicial review of a hospital board action 'should
    properly focus on the reasonableness of the action taken in
    relation        to   the     several      interests         of      the     public,       the
    [physician], and the hospital.'"                      Zoneraich, supra, 212 N.J.
    Super. at 91 (emphasis added) (quoting Garrow, supra, 79 N.J. at
                                               33                                       A-5112-12T2
    565).   Because of the internal nature of the hospital's private
    hearing, "'[t]he proper standard upon review is not identical
    with that customarily applied to administrative agencies, that
    is, substantial competent credible evidence.'"              Ibid. (quoting
    Garrow, supra, 79 N.J. at 565).             "'However, the record should
    contain sufficient reliable evidence, even though of a hearsay
    nature, to justify the result.'"            Ibid. (quoting Garrow, supra,
    79 N.J. at 565).
        The HCQIA likewise affords deference to hospitals and their
    representatives      when   they     make    these   difficult     decisions
    concerning a physician's clinical privileges.           That deference is
    manifested by the federal law's express presumption that the
    immunity from damages applies unless the physician challenging
    the hospital's adverse decision proves, by a preponderance of
    the evidence, that the decision-makers took action without a
    reasonable belief that it was in furtherance of quality health
    care, failed to provide adequate notice and hearing procedures,
    or took action without a reasonable belief based on the facts
    known   after   a   reasonable     investigation.     See   42   U.S.C.A.     §
        The "reasonable belief" concepts in subsections (a)(1) and
    (a)(4) of Section 11112 are objective standards.                 In fact, as
    the House Committee report explains, the drafters of the federal
                                          34                             A-5112-12T2
    immunity revised the bill to replace a "good faith" requirement
    contained in an earlier version to "a more objective 'reasonable
    belief'"     standard.           H.R.    Rep.       No.    99-903,     at    10     (1986),
    reprinted in 1986 U.S.C.C.A.N. 6392-93.                           The Committee noted
    "concerns that 'good faith' might be misinterpreted as requiring
    only a test of the subjective state of mind of the physicians
    conducting       the   professional           review       action."         Ibid.         The
    Committee further declared its intention that the "reasonable
    belief"    test    "will    be    satisfied         if    the     reviewers,      with    the
    information available to them at the time of the professional
    review action, would reasonably have concluded that their action
    would restrict incompetent behavior or would protect patients."
    Ibid.      The    Committee       also       expressed      its    "belief     that      this
    standard     will      be   met         in    the     overwhelming          majority        of
    professional       review     actions[.]"                 Ibid.     (emphasis       added).
    Consistent with the drafters' intent, case law has repeatedly
    treated the "reasonable belief" test under the statute as an
    objective test.16
           See, e.g., Cohlmia v. St. John Med. Ctr., 
    693 F.3d 1269
    1277 (10th Cir. 2012) ("The entity or persons that undertake the
    professional review are immune under HCQIA as long as they
    substantially comply with a list of objective standards set
    forth in the Act."); Poliner, supra, 537 F.3d at 377 ("[T]he
    HCQIA's 'reasonableness requirements were intended to create an
    objective standard of performance, rather than a subjective good
    faith standard.'"); Gordon, supra, 423 F.3d at 205 ("[I]mmunity
                                                  35                                    A-5112-12T2
          The HCQIA does not specify that a reviewing court must be
    provided with transcripts of the hospital's internal hearing in
    order to evaluate the adequacy of the hospital's proceedings.
    Although we recognize that the trial court in Zoneraich was
    apparently supplied with a record of the hospital's internal
    proceedings, we do not construe the HCQIA to require that such
    transcripts be furnished in every case.         The transcripts are not
    vital where, as here, the other documents provided to the court
    sufficiently establish that the physician was afforded a fair
    and   reasonable   opportunity   to    be   heard,   and   show   that   the
    hospital's ultimate decision was reasonably attained based upon
    factual determinations generated from those internal hearings.
          N.J.S.A. 2A:84A-22.10 extends a similar form of immunity
    protection for hospitals, peer reviewers, and decision-makers.
    will be judged by applying the objective standard regarding
    whether the Hospital based its actions upon the reasonable
    belief that they are in furtherance of quality healthcare.");
    Meyers v. Columbia/HCA Healthcare Corp., 
    341 F.3d 461
    , 468 (6th
    Cir. 2003) ("[The HCQIA] is an objective standard, rather than a
    subjective   good  faith   requirement.");  Freilich   v.  Upper
    Chesapeake Health, 
    313 F.3d 202
    , 212 (4th Cir. 2002) ("[T]he
    HCQIA's objective reasonableness standard is a perfectly valid
    guide for peer review bodies."); Singh, supra, 308 F.3d at 32
    ("[S]ister circuits have uniformly applied all the sections of §
    11112(a) as objective standards"); Sugarbaker v. SSM Health
    187 F.3d 853
    , 857 (8th Cir. 1999) ("[T]he reasonableness
    requirements contained in section 11112(a) necessitate an
    objective inquiry."), cert. denied, 
    528 U.S. 1137
    120 S. Ct. 980
    145 L. Ed. 2d 931
                                      36                               A-5112-12T2
    The    provision      broadly   covers   "any    person"       involved    in   such
    review of a physician "for any action taken or recommendation
    made    by    [that   person]   within    the    scope    of    [that     person's]
    function" in that role.          N.J.S.A. 2A:84A-22.10(e).           This state-
    law immunity applies, so long as "such action or recommendation
    was taken or made without malice and in the reasonable belief
    after        reasonable     investigation        that      such      action       or
    recommendation was warranted upon the basis of facts disclosed."
    N.J.S.A. 2A:84A-22.10(e) (emphasis added).17
           Although the term "malice" is not defined within N.J.S.A.
    2A:84A-22.10,      the    conventional    meaning   of     that    term    suggests
    that    the    sanctioned    physician    must    prove    that    the     hospital
    defendants acted, in essence, either with ill will, without just
    cause,18 or with a reckless disregard of the truth of the facts
       Unlike the federal statute, the New Jersey statute does not
    contain an express presumption that the state-law immunity
    controls and must be overcome by the plaintiff.
       In other contexts, malice "is defined as 'the intentional
    doing of a wrongful act without just cause or excuse.'"
    LoBiondo v. Schwartz, 
    199 N.J. 62
    , 93-94 (2009) (quoting Jobes
    v. Evangelista, 
    369 N.J. Super. 384
    , 398 (App. Div.) (defining
    malice in the context of a malicious prosecution case), certif.
    180 N.J. 457
     (2004)); see also Lamorte Burns & Co. v.
    167 N.J. 285
    , 306 (2001) (noting, in the context of
    tortious interference, that "malice" means that "harm was
    inflicted intentionally and without justification or excuse").
                                             37                                A-5112-12T2
    regarding the physician's quality of care.19                       The "reasonable
    belief" aspect of the New Jersey statute is also undefined.                             We
    discern no basis to construe it any differently than the federal
    immunity statute's usage of that term.
         We have no doubt that plaintiff was provided here with a
    procedurally fair opportunity to be heard during the hospital's
    internal    process.         He   was    given       multiple    opportunities          to
    provide    written    submissions        to    the    hospital's     reviewers      and
    decision-makers.        He    was    advised      before     the    formal    hearing
    conducted by the hearing panel of the specific patient cases
    that would be the subject of review.                  He was represented in the
    internal    hearings    by    able      and    experienced      counsel    who     is    a
    certified civil trial attorney.                  He apparently testified and
    also presented his own expert witness.                      The findings of the
    Investigating Committee and, thereafter, of the hearing panel,
    were clearly detailed in writing.
         By    all   indications,       these      procedures    comported       with   the
    HCQIA, the New Jersey statute, and case law.                       It is not as if
    plaintiff    had     been    abruptly         summoned   before     the    Board        of
    Trustees    without     warning         and     summarily       stripped      of    his
    privileges for no articulated reasons.                    To the contrary, the
      See, e.g., DeAngelis v. Hill, 
    180 N.J. 1
    , 13 (2004) (applying
    such a notion of "malice" in the context of a defamation case).
                                              38                                  A-5112-12T2
    Board's final decision was the culmination of a lengthy and
    elaborate process, one in which plaintiff had many opportunities
    to present opposition and, presumably, to settle the matter on
    the terms recommended in succession by the internal reviewers.
         Attempting to meet his burden to establish unreasonableness
    or other improper conduct, plaintiff points to three aspects of
    the chronology that he contends are indicia that defendants'
    statutory    immunities     should         be       overcome.        He     specifically
    alleges in his reply brief that:                 (1) defendants did not have a
    reasonable    belief    that    their      actions        as   to    him   were   in    the
    furtherance of quality health care; (2) they failed to provide
    him with adequate notice of the first investigation and of the
    initial referral to the outside reviewer; and (3) they lacked a
    reasonable    belief    that    the   sanctions           recommended       and   imposed
    were warranted.        As to that latter point, plaintiff emphasizes
    that the sanction of revocation ultimately imposed by the Board
    of   Trustees    was     harsher      than          the   conditional        suspension
    recommended by both the MEC and the hearing panel.                            We concur
    with the trial court that there is no merit to these contentions
    of unfairness.
         The     record    provides       an        ample     basis      to    justify      the
    hospital's    decision     to    pursue         a     review    of    the    care      that
    plaintiff had provided          to several of his patients.                       Indeed,
                                               39                                     A-5112-12T2
    those concerns were borne out by the adverse findings of the
    outside reviewer, the Investigating Committee, and the hearing
    panel.        The     documents       in   the     appendices        readily      show   that
    defendants          had     a   reasonable         basis    to       believe      that    the
    professional review and remedial action they took was pursued to
    further       the    quality     of     health      care    being      provided     to    the
    hospital's patients.
           In general, the applicable nexus to the "quality of health
    care" will be satisfied under the HCQIA if the reviewing body,
    based    on    the        information      before    it,    "would      reasonably       have
    concluded that [its] action would restrict incompetent behavior
    or would protect patients."                   Gordon, supra, 423 F.3d at 202
    (quoting H.R. Rep. No. 99-903, at 10 (1986), reprinted in 1986
    U.S.C.C.A.N. 6393).             As the Fifth Circuit has noted, the HCQIA
    "does not require that the professional review result in an
    actual improvement of the quality of health care, nor does it
    require that the conclusions reached by the reviewers were in
    fact    correct."            Poliner,      supra,     537    F.3d      at   378    (quoting
    Imperial v. Suburban Hosp. Ass'n, Inc., 
    37 F.3d 1026
    , 1030 (4th
    Cir. 1994)).          That observation is consistent with the fact that
    Congress      prescribed,        under      42     U.S.C.A.      §    11112(c),     that     a
    professional         review     board      may      immediately       suspend      clinical
    privileges "where the failure to take such an action may result
                                                  40                                    A-5112-12T2
    in an imminent danger to the health of any individual."                           Ibid.
    As the Third Circuit has observed, "the good or bad faith of the
    reviewers [under the HCQIA] is irrelevant."                    Brader v. Allegheny
    Gen. Hosp., 
    167 F.3d 832
    , 840 (3d Cir. 1999) ("Brader II").
          At the time its nearly year-long review process began, the
    hospital      had      outstanding     concerns           regarding     plaintiff's
    management     of   his    patients    and        his   documentation       of    their
    treatment.        Indeed, as the outside reviewer concluded in his
    report,    plaintiff      "either    did    not    understand     the   appropriate
    steps in management or approached the situation too passively.
    Neither      is     acceptable."                Moreover,      plaintiff      himself
    acknowledged in his Second Amended Complaint that two of his
    patients     "had   recognized      complications         associated       with   their
    surgeries."       The fact that those patients eventually recovered
    is   not   dispositive.        The    record       manifestly     shows     that    the
    hospital's initiation of the review process was reasonable.
          We also reject plaintiff's next claim that defendants are
    disentitled to immunity because they failed to provide him with
    advance notice of the first steps of the outside review and
    investigation.       As federal case law instructs, "nothing in the
    [HCQIA] requires that a physician be permitted to participate in
    the review of his [own patient's] care."                    Singh, supra, 308 F.3d
    at   44    (citation    omitted).          The    HCQIA     applies   to    "discrete
                                               41                                 A-5112-12T2
    decisions, not an on-going course of conduct."                               Wojewski v.
    Rapid City Reg'l Hosp., Inc., 
    730 N.W.2d 626
    , 636 n.9 (S.D.
    2007) (applying the HCQIA's immunities).
          Plaintiff's      third         argument,      contending        that    defendants
    lacked a reasonable belief that the sanctions against him were
    actually warranted, is similarly flawed.                      He contends that the
    Board of Trustees "consistently and inexplicably disregarded"
    the independent recommendations made regarding his performance.
    In his view, the Board of Trustees did not possess a reasonable
    belief that its decision to revoke his privileges was warranted.
    The trial judge rejected this specious assertion, and so do we.
          Courts generally agree that "the reversal of a peer review
    committee's      recommendation         of   an    adverse     professional       review
    action by a higher level peer review panel does not indicate
    that the initial recommendation was made without a reasonable
    belief    that   the   recommendation             would    further     quality    health
    care."    Singh, supra, 308 F.3d at 41 (citing Austin v. McNamara,
    979 F.2d 728
    ,   735       (9th    Cir.    1992)       (granting    immunity       in   a
    situation     where       a     hospital's         judicial        review      committee
    overturned a medical executive committee's recommendation of an
    adverse   professional         review    action)).           The   converse      is   also
                                                 42                                  A-5112-12T2
          The mere fact that, as plaintiff's counsel's phrased it at
    oral argument before us, the hospital decision-makers "ratcheted
    up" the sanctions as the matter progressed does not signify that
    the   Board   of   Trustees   or   the   other   hospital    decision-makers
    acted    unreasonably   or    maliciously.       In   the   motion    arguments
    below,    Judge    Grispin    aptly   analogized      the   present    case    to
    attorney discipline cases, in which the Supreme Court sometimes
    imposes a harsher ultimate sanction on a licensee                     than that
    recommended by the Disciplinary Review Board.20                 The ultimate
    authority to make privilege decisions within the hospital rests
    with the Board of Trustees under the hospital's bylaws, and the
    Board's selection of a harsher penalty in this case does not
    mean that it acted maliciously or unreasonably.
          The Board had a reasonable cause for serious concern after
    the hearing panel concluded from the testimony it heard that
    plaintiff had made a false entry on a patient chart.                 Whether or
    not that discrete finding is actually true is beyond our limited
       Although the Supreme Court "ordinarily place[s] great weight
    on the recommendation of the Disciplinary Review Board," the
    Court "[does not] not hesitate to impose a more severe sanction
    than that recommended by the Board when circumstances warrant."
    In re Kushner, 
    101 N.J. 397
    , 403 (1986) (citations omitted)
    (finding the attorney's false certification a "grave misconduct"
    and elevating the Disciplinary Review Board's recommended one-
    year suspension to three years); see also In re Rosen, 
    88 N.J. 1
    , 3 (1981) (finding the attorney's subornation of perjury
    "inexcusable and reprehensible" and elevating the Disciplinary
    Review Board's proposed one-year suspension to three years).
                                          43                                A-5112-12T2
    scope of review.              True or not, the finding alone reasonably
    supported       the   Board     of     Trustees'       discretionary           decision      to
    revoke plaintiff's privileges.                  Moreover, plaintiff apparently
    bypassed numerous opportunities to resolve this matter with the
    lesser    sanctions      recommended           by   the     MEC,      the   Investigating
    Committee, and the hearing panel before the matter reached the
    Board level.
          As a final matter, we consider plaintiff's argument that
    the   trial     court    acted    prematurely          in      dismissing      his   lawsuit
    without further discovery, particularly in denying his request
    for   the     depositions       of     persons      involved       in    the     hospital's
    review,     investigation,       and     decision-making              process.        We   are
    satisfied that Judge Grispin did not misapply his discretion in
    curtailing further discovery and in adjudicating the immunities
    of defendants on the law and on the record supplied to him.
          Neither the HCQIA nor N.J.S.A. 2A:84A-22.10 specifies what
    amount of discovery, if any, is warranted before a trial court
    may   adjudicate        the    merits     of     the    immunities          invoked     by    a
    hospital or individual defendants who participated in the review
    of a physician's clinical privileges.                       We are mindful, however,
    of the House Committee's guidance that the immunity question
    under     the    HCQIA    may     be     resolved         at    "an     early    stage       of
                                               44                                        A-5112-12T2
    litigation," and that court may do so "even though other issues
    in the case remain to be resolved."                H.R. Rep. No. 99-903, at 12
    (1986), reprinted in 1986 U.S.C.C.A.N. at 6394.
          The    federal   cases     display      no   consistent   pattern   in    the
    level of discovery afforded to physicians who challenge hospital
    defendants' assertions of HCQIA immunity.                  In some instances,
    the federal courts have found that the plaintiff physician was
    entitled to limited discovery of the peer review process.                       See,
    e.g., Wahi v. Charleston Area Med. Ctr., Inc., 
    453 F. Supp. 2d 942
    , 948 (S.D. W. Va. 2006) (authorizing limited discovery, in
    the   form   of   numerically-capped          interrogatories,      requests    for
    admissions, and time-limited depositions), aff'd, 
    562 F.3d 599
    (4th Cir. 2009), cert. denied, 
    558 U.S. 1158
    130 S. Ct. 1140
    175 L. Ed. 2d 991
     (2010); Teasdale v. Marin Gen. Hosp., 
    138 F.R.D. 691
    , 694 (N.D. Cal. 1991) (authorizing the production of
    peer review documents); see also Sugarbaker, supra, 187 F.3d at
    857 (noting that the trial court had allowed depositions of
    persons involved in the hospital's peer review process, where
    the   reasonableness       of     that     process,     including      claims    of
    antitrust     violations    by    the    defendants,      had   been    plausibly
    challenged by plaintiff).
                                             45                               A-5112-12T2
           Conversely, in some instances, the HCQIA immunity issues
    were resolved by the trial court at an early stage by granting a
    motion to dismiss for failure to state a claim upon which relief
    may be granted.          See, e.g., Straznicky v. Desert Springs Hosp.,
    642 F. Supp. 2d 1238
    , 1240 (D. Nev. 2009) (granting dismissal of
    plaintiff's damage claims, with prejudice, based solely on the
    allegations of the plaintiff's complaint and related documents
    that    the   plaintiff     physician    had       supplied    to    the     court   in
    connection with his motion for a temporary restraining order);
    Sobel v. United States, 
    571 F. Supp. 2d 1222
    , 1229 (D. Kan.
    2008)    (granting   the     defendants'     motion     to    dismiss      under     the
    HCQIA on the face of the pleadings, finding, among other things,
    that the plaintiff physician had not asserted sufficient grounds
    to overcome the statute's presumption of immunity).
           At the very least, the question of immunity under the HCQIA
    may be resolved in appropriate cases at the summary judgment
    stage.        As   the     Ninth   Circuit     has     observed,       because       the
    "reasonableness"         requirements   of    42    U.S.C.A.    §    11112(a)      were
    "intended     to   create     an   objective        standard,       rather    than     a
    subjective standard [of judicial review], this inquiry may be
    resolved on summary judgment."               Smith v. Ricks, 
    31 F.3d 1478
    1485 (9th Cir. 1994), cert. denied, 
    514 U.S. 1035
    115 S. Ct. 1400
    131 L. Ed. 2d
     287 (1995).                    The question then becomes
                                            46                                    A-5112-12T2
    whether a plaintiff has been afforded a sufficient opportunity
    to obtain facts that might bear upon that objective assessment.
          The sparse case law under the analogous New Jersey immunity
    statute is not instructive on the discovery question.                               As with
    the   federal      statute,       it     is        logical     to        conclude   that      a
    defendant's entitlement to immunity under N.J.S.A. 2A:84A-22.10
    can at times be resolved on a dispositive motion.                            It is equally
    sensible to conclude that a plaintiff's right to discovery on
    the state-law immunity issues may be reasonably limited by a
    trial judge.
          We   decline    to     adopt     a      per     se     rule    declaring        that    a
    plaintiff    physician      who    has     lost       his    clinical       privileges       is
    always entitled to depositions or other full-blown discovery in
    litigating HCQIA immunity issues.                     Such a blanket right would
    conflict    with    the     intent     of      Congress        to    permit     the    HCQIA
    immunity to be adjudicated at an "early stage of litigation" in
    appropriate cases.          Nor do we construe the New Jersey immunity
    statute to create such an absolute right.
          In   some    cases,    an    unfettered            right      to    discovery    would
    needlessly      entangle      hospitals            and      review        participants       in
    depositions and other litigation activities, thereby diluting
    the practical benefit of the immunity protection conferred upon
    them by statute.          Although we are mindful that these statutes
                                                  47                                    A-5112-12T2
    provide hospital defendants with immunity from damages rather
    than    immunity      from    suit,      we    also      appreciate      that   protracted
    discovery easily can be costly and burdensome for the persons
    and entities involved.              An appropriate balance can, and should,
    be struck.
           We   therefore       adopt    a    case-by-case          approach      that   reposes
    discretion       in   the    trial       court      to    determine      to   what       extent
    discovery on the immunity issues should be permitted.                                      See,
    e.g.,    R.   4:46-5        (granting         trial      judges    authority        to    defer
    decisions on summary judgment motions where the party opposing
    the    summary    judgment      motion        demonstrates,         by   affidavit,       that
    additional discovery is needed to respond to the motion).                                  Such
    a case-specific approach is consistent with the important role
    that our civil trial judges routinely perform in balancing the
    needs of litigants to obtain relevant information against the
    often significant burdens and costs of the discovery process.
    The exercise of wise judicial discretion in striking a proper
    balance of those interests is particularly important where, as
    here, immunity statutes are involved.
           On   appeal,     we    generally         will      not     second-guess       a    trial
    judge's exercise of discretion in discovery matters unless the
    appellant     demonstrates            that       such      discretion         was    abused.
    Pomerantz Paper Corp. v. New Cmty. Corp., 
    207 N.J. 344
    , 371
                                                   48                                    A-5112-12T2
    (2011); Bender v. Adelson, 
    187 N.J. 411
    , 428 (2006).                         We must
    review    the   trial    court's       denial   of   additional       discovery     to
    plaintiff here through that prism of deference.
           Here, plaintiff already received at least some amount of
    paper discovery in the Chancery Division action.                  Plaintiff and
    his attorney actively participated in the two hearings before
    the hospital's hearing panel.              He now demands depositions, on
    the conjectural supposition that such adversarial questioning of
    the    hospital's       representatives         might   reveal    a     proverbial
    "smoking gun" reflecting malice or some form of unreasonable
    conduct on their part.
           We concur with Judge Grispin that, given the particular
    context of this case, there is no need to allow such depositions
    to proceed when defendants' entitlement to immunity is so clear.
    Even if depositions proceeded, the individual deponents (or the
    hospital itself) might assert absolute or qualified privileges
    from     disclosure     under    potentially-applicable          confidentiality
    laws, and might decline to answer some or all of plaintiff's
    queries.     See, e.g., C.A. v. Bentolila, 
    219 N.J. 449
    , 451 (2014)
    (involving      privileges      from    disclosure      under   the    New     Jersey
    Patient Safety Act);21 Christy v. Salem, 
    366 N.J. Super. 535
       Although defendants have cited to the Patient Safety Act,
    N.J.S.A.   26:2H-12.23 to   -12.25, we  make   no  conclusive
                                              49                                 A-5112-12T2
    541-45 (App. Div. 2004) (recognizing a qualified privilege from
    disclosure under a hospital's peer review privilege).                        As the
    Supreme Court recently underscored in C.A., there are strong
    public policies recognized by the Legislature in encouraging the
    free flow of evaluative communications within a hospital made in
    an effort to improve future patient care.                C.A., supra, 219 N.J.
    at 473.     We need not and do not resolve the applicability of
    these   confidentiality       laws    and    public    policies,      but     simply
    acknowledge    that    they    might    well     limit      the    scope    of    any
    additional discovery if it had been allowed.
           Other than his vague suppositions that his circumstances
    were      unfairly     considered       by      the      hospital       and       its
    representatives, plaintiff has not set forth a proffer, in a
    sworn   affidavit     pursuant   to    Rule    4:46-5     or      otherwise,     that
    specifies what information he would intend to elicit from the
    hospital's representatives at their depositions.                     If plaintiff
    wants to ask them why they did what they did, the reasons are
    self-evident    from   the    written       findings   of    the    Investigating
    determination that the Act applies to the communications in this
    case. See N.J.A.C. 8:43E-10.9(b)(1) (limiting the protection of
    the Patient Safety Act to documents, materials, and information
    developed by a health care facility "exclusively" during the
    process of self-critical analysis); see also, C.A., supra, 219
    N.J. at 467-68. At the very least, the potential applicability
    of that statute would no doubt complicate the discovery process.
                                           50                                   A-5112-12T2
    Committee, the hearing panel, and the Board of Trustees —— all
    of which he already has in his possession.
           In    addition,        this     is     not     a     case     in     which         antitrust
    violations have been alleged, which has been true in some of the
    federal      cases     where    more        extensive        discovery       was      permitted.
    See, e.g., Brader v. Allegheny Gen. Hosp. 
    64 F.3d 869
    , 876 (3d
    Cir.    1995)        ("Brader        I")     (reversing            the     district         court's
    dismissal of the plaintiff's complaint, in part, because "the
    adequacy of a physician's contentions regarding the effect on
    competition      is     typically      resolved            after    discovery,            either   on
    summary judgment or after trial"); see also Sugarbaker, supra,
    187 F.3d at 857 (likewise involving discovery completed of a
    case    involving        antitrust          claims).               Where     such         colorable
    antitrust claims are present, the factual and legal complexity
    of the case may be greater and the justification for plenary
    discovery may be heightened.
           Plaintiff's complaint, which he has amended multiple times,
    makes       several    conclusory           allegations        that        defendants          acted
    "maliciously"         and     "arbitrarily"           in    taking       away       his    clinical
    privileges.           As Judge Grispin correctly recognized, the mere
    inclusion       of     such     normative         adverbs          within       a    physician's
    complaint      does     not    justify       a    free-wheeling            discovery        mission
                                                     51                                         A-5112-12T2
    delving into a hospital's internal review and investigation of
    that physician's poor performance.
        The trial court reasonably concluded that plaintiff already
    had been provided with enough information to attempt to surmount
    the statutory immunities.       Because the court did not abuse its
    discretion,   we   sustain      its     sensible       decision   to   curtail
    additional    discovery   and     to        disallow   depositions     of    the
    hospital's representatives.
                                           52                              A-5112-12T2