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Sharda v. Sunrise Hospital And Medical Center, LLC

United States District Court, D. Nevada

July 3, 2017

NAVNEET SHARDA, M.D., Plaintiffs,
v.
SUNRISE HOSPITAL AND MEDICAL CENTER, LLC, et al., Defendants.

          ORDER

         Presently before the court is defendants Sunrise Hospital and Medical Center, LLC (“Sunrise”) and the Board of Trustees of Sunrise Hospital's motion to dismiss. (ECF No. 35). Plaintiff Navneet Sharda filed a response (ECF No. 46), to which defendants replied (ECF No. 50).

         I. Facts

         The present case involves a dispute over Dr. Navneet Sharda's medical working privileges within Sunrise's Division of Radiation Oncology. (ECF No. 11). Plaintiff requests that the court order defendants: (1) to reinstate his medical privileges; (2) provide him with a “speedy” fair hearing through Sunrise; and (3) update the National Practitioner Data Bank (“NPDB”) record, which currently indicates that plaintiff trespassed on Sunrise property. (ECF No. 11).

         Dr. Sharda earned his privileges to practice medicine within Sunrise's Division of Radiation Oncology in 2001, which he maintained in some form (temporary, provisional, or active) for nearly ten years. (Id. at 4).

         In 2001, Nevada Board of Medical Examiners (“NBME”) member Dipak Desai offered Sharda business opportunities in exchange for 5 percent of his medical practice. (ECF No. 11 at 12). Sharda turned him down but alleges that Susan Reisinger accepted the same deal or a similar deal shortly thereafter.[1] (Id.). Plaintiff further alleges that from 2001 to present, Reisinger and Desai worked together to set up “administrative blocks” to Sharda's privileges. (Id. at 13).

         In October 2011, Sunrise wrote a letter to Sharda requesting information missing from his privileges application. (Id. at 6). Sharda did not provide the information, and his privileges consequently lapsed in November 2011. (Id.). Sunrise reinstated Sharda's privileges in January 2012. (Id.).

         In November 2013, plaintiff's privileges lapsed again. (ECF No. 35 at 7). Plaintiff filed a timely request for consideration (“RFC”) but failed to provide additional information regarding past patient care pursuant to Sunrise's credentials committee request. (Id. at 7-8). The committee found that Sharda's RFC was incomplete. (Id.). Sunrise discontinued processing that RFC in February 2014. (Id.).

         In July 2015, plaintiff filed a second RFC, which Sunrise again denied on the grounds that Sharda had already failed to supply documentation in 2013. (ECF No. 11 at 8). Sharda did not appeal the decision; he submitted his third RFC in October 2015. (Id. at 9).

         In December 2015, with his third RFC pending, Sharda went to Sunrise to treat a patient. (ECF No. 46). Sharda had previously consulted with the patient and went to the hospital after receiving a text from Dr. Arrastia, a Sunrise employee, informing Sharda the patient was at Sunrise. (Id.). Following Sharda's visit, Sunrise sent him a cease and desist letter. (ECF No. 46-5). The letter barred Sharda from practicing medicine in the hospital and stated Sunrise would report his trespass to the Nevada Board of Medical Examiners (“NBME”). (Id.).

         On January 5, 2016, Sunrise's credentials committee recommended denying Sharda's RFC because of his trespass and Sharda's settlement with the U.S. Department of Justice regarding a Medicare billing issue. (ECF No. 46 at 7). The medical executive committee accepted the recommendation and denied his October 2015 RFC. (ECF No. 35 at 9-10).

         In response, Sharda submitted a request for fair hearing on February 23, 2016; Sunrise acknowledged the request in March. (Id.). Sharda did not provide the hospital with proposed dates or times for the fair hearing. (ECF No. 11). Instead, plaintiff alleges it was Sunrise who failed to schedule the hearing. (Id.). Plaintiff subsequently filed suit, alleging conspiracy, a due process violation under the Fourteenth Amendment, an antitrust violation, tortious interference, breach of contract, and seeking declaratory and injunctive relief. (Id.).

         II. Legal Standard

         The court may dismiss a plaintiff's complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A properly pled complaint must provide “[a] short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although rule 8 does not require detailed factual allegations, it does require more than labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Furthermore, a formulaic recitation of the elements of a cause of action will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (citation omitted). Rule 8 does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Id. at 678-79.

         To survive a motion to dismiss, a complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its face.” Id. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. When a complaint pleads facts that are merely consistent with a defendant's liability, and shows only a mere possibility of entitlement, the complaint does not meet the requirements to show plausibility of entitlement to relief. Id.

         In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering a motion to dismiss. Id. First, the court must accept as true all of the allegations contained in a complaint. Id. However, this requirement is inapplicable to legal conclusions. Id. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id. at 678. Where the complaint does not permit the court to infer more than the mere possibility of misconduct, the complaint has “alleged - but not shown - that the pleader is entitled to relief.” Id. at 679. When the allegations in a complaint have not crossed the line from conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 550 U.S. at 570.

         The Ninth Circuit addressed post-Iqbal pleading standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The Starr court held:

First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.

Id.

         III. Discussion

         a. Statute of limitations

         Under Nevada Revised Statutes (“NRS”) 11.190(1)(b), “actions . . . may only be commenced . . . [w]ithin 6 years . . . [on a]n action upon a contract, obligation, or liability founded upon an instrument in writing.” Plaintiff's claims of tortious interference, breach of contract, and a due process violation all stem from Sunrise's March 2016 letter acknowledging his request for a fair hearing. (ECF No. 11). The hospital bylaws detail the hearing process, and these claims are within the six year statute of limitations because bylaws can be a contract. See NRS 11.90(1)(b); Williams v. Univ. Med. Ctr. of S. Nev., 688 F.Supp.2d 1134, 1142 (D. Nev. 2010).

         Under 15 U.S.C. § 15b, “any action to enforce [anything forbidden in the antitrust laws] shall be forever barred unless commenced within four years after the cause of action accrued.” Plaintiff's claim of an antitrust violation stems from Sunrise's February 2016 NPDB filing, which occurred within the four year statute of limitations. See 15 U.S.C. § 15b; (ECF No. 11 at 17). Therefore, plaintiff's antitrust violation claim is not time barred. See 15 U.S.C. § 15b.

         “Civil conspiracy is governed by the catch-all provision of NRS 11.229, which provides that an action ‘must be commenced within 4 years after the cause of action shall have accrued.'” Siragusa v. Brown, 971 P.2d 801, 806 (Nev. 1998). That court held “that an action for civil conspiracy accrues when the plaintiff discovers or should have discovered all of the necessary facts constituting a conspiracy claim.” Id. at 807.

         Here, plaintiff's civil conspiracy claim alleges that from 2001 to present, Reisinger and Desai acted on an agreement to restrict Sharda's medical practice. (ECF No. 11 at 11-14). Since plaintiff's claim relied on facts occurring within the three year statute of limitations, it is not time barred. See Siragusa, 971 P.2d at 807.

         b. Health Care Quality Improvement Act (“HCQIA”)

         For a hospital to claim immunity under HCQIA, it must demonstrate: “(1) its professional review actions complied with the fairness standards set out in 42 U.S.C. § 11112(a); (2) it reported the results of the professional review action to state authorities [. . .]; and (3) the professional review actions commenced on or after November 14, 1986.” Smith v. Ricks, 31 F.3d 1478, 1485 (9th Cir. 1994). Defendants and plaintiff do not dispute (2) and (3). (ECF Nos. 46-3, 50).

         The fairness standards in § 11112(a) require peer review action to be taken:

(1) in the reasonable belief that the action was in the furtherance of quality healthcare, (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.

         If the hospital's behavior meets the fairness standards, then the court may decide that HCQIA immunity applies to the hospital on a motion to dismiss. Straznicky v. Desert Springs Hosp., 642 F.Supp.2d 1238, 1248-49 (D. Nev. 2009). Additionally, “a professional review action shall be presumed to have met the preceding standards . . . ...


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