United States District Court, D. Nevada
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).
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).
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).
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. (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).
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.).
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.).
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).
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.).
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
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.).
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.
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.
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.
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
Statute of limitations
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).
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.
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.
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.
Health Care Quality Improvement Act
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).
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.
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 . . .