Linda A. Miller, M.D. Plaintiff- Appellee
Huron Regional Medical Center Defendant-Appellant
Submitted: June 11, 2019
from United States District Court for the District of South
Dakota - Sioux Falls
LOKEN, KELLY, and ERICKSON, Circuit Judges.
Regional Medical Center (HRMC) appeals the district
court's denial of its motion for remittitur or a
new trial following the jury's award of damages to Dr.
Linda A. Miller, one of HRMC's former physicians. We
conclude that the district court did not abuse its discretion
and therefore affirm.
Health Care Quality Improvement Act of 1986 (HCQIA), 42
U.S.C. §§ 11101-11152 (2012), requires certain
information about physicians to be reported to the National
Practitioner Data Bank (NPDB). A health care entity such as
HRMC must report whenever it "accepts the surrender of
clinical privileges of a physician (i) while the physician is
under an investigation by the entity relating to possible
incompetence or improper professional conduct, or (ii) in
return for not conducting such an investigation or
proceeding." § 11133(a)(1)(B). Another type of
report must be filed whenever a medical malpractice claim is
settled. See § 11131(a). NPDB reports are not
available to the public but are available to state licensing
boards and prospective employers. The HCQIA contains an
immunity provision that states: "No person or entity . .
. shall be held liable in any civil action with respect to
any report made under this subchapter . . . without knowledge
of the falsity of the information contained in the
report." § 11137(c).
Miller began working for HRMC as a surgeon in 2004. In 2009,
she executed a new three-year contract with HRMC (the
Surgical Services Agreement or SSA). The SSA provided for
termination without cause by either party on 180 days'
notice. The SSA required Dr. Miller to maintain a valid
medical license in South Dakota and full admitting privileges
at HRMC. Decisions about physician appointments and
privileges are made by HRMC's Board of Directors based on
recommendations by the Medical Executive Committee (MEC).
Members of the medical staff, including physicians, are
governed by the Medical Staff Bylaws.
working at HRMC, Dr. Miller settled a number of malpractice
lawsuits, each of which triggered a NPDB report. At a
regularly scheduled August 24, 2010 Board of Directors
meeting, the Board received an update on pending litigation
and asked the MEC to conduct a review of Dr. Miller's
medical records "to determine any trends to be
addressed, to be reported back to the Board." The MEC
met on October 14, 2010, and agreed to conduct a three-month
review of Dr. Miller's charts, followed by a
reevaluation. That review ended on January 18, 2011. Although
the MEC did not report any concerns with the first review,
the Board requested that the MEC conduct a second three-month
the second review was ongoing, Dr. Miller experienced two bad
outcomes with patients. On April 25, 2011, the MEC decided to
have Dr. Blessinger discuss the cases with Dr. Miller.
According to Dr. Miller's testimony, Dr. Blessinger told
her that the MEC recommended a voluntary reduction in her
surgical privileges, in the hopes that it would appease the
Board and avoid her termination. Dr. Blessinger testified
that he did not ask Dr. Miller to reduce her privileges but
"discussed with her that reducing her privileges might
allow us to continue to have her practice medicine" with
HRMC. Dr. Blessinger expressed his belief that a voluntary
reduction in her privileges would not trigger a NPDB report.
same day, Dr. Miller submitted a revised privilege checklist
omitting abdominal surgeries. HRMC's CEO, John Single,
consulted with the hospital's counsel and concluded that
if the Board accepted Dr. Miller's reduction in
privileges it would need to be reported to the NPDB. Single
showed Dr. Miller a draft of the NPDB report, and Dr. Miller
did not attempt to withdraw her privileges request. On April
29, 2011, the Board accepted Dr. Miller's reduction in
privileges, and HRMC filed the NPDB report on May 11, 2011.
The report stated: "Dr. Miller voluntarily surrendered a
portion of her surgical privileges while the Medical
Executive Committee was investigating her quality of care.
The Board of Directors approved this surrender of certain
privileges April 29, 2011." At the same April 29
meeting, the Board voted to terminate the SSA without cause
per the 180-day provision.
Miller later resigned, but HRMC continued to pay her through
October 30, 2011, which was the end of the 180-day period in
the SSA. Dr. Miller remained unemployed for six months before
accepting a job performing wound care in Florida. Prior to
accepting that job, she had applied for a surgical position
and was told she would not be able to get credentials because
of the NPDB report filed as a result of her reduction in
Miller sued HRMC for breach of contract and
defamation. In her contract claim, Dr. Miller alleged
that HRMC's request to reduce her privileges constituted
corrective action, which created a right to a hearing under
Sections 10.2(h)(iv), 10.2(i) and 11.2-2 of the Medical Staff
Bylaws. On the defamation claim, she alleged that the MEC was
not "investigating her quality of care" at the time
she surrendered her privileges, making HRMC's NPDB report
knowingly false. Dr. Miller sought compensatory and punitive
trial, one of Dr. Miller's experts, Dr. Lawrence Huntoon,
presented evidence that HRMC had not complied with the
Medical Staff Bylaws because it did not afford Dr. Miller a
hearing prior to requesting a reduction in her surgical
privileges. He also testified that the review being conducted
of Dr. Miller's cases was not an
"investigation" as that term is used in the Bylaws.
As Dr. Miller was not "under an investigation . . .
relating to possible incompetence or improper professional
conduct," § 11133(a)(1)(B)(i), no NPDB report
needed to be filed. Further, the NPDB ...