Isaac Isaiah, M.d. v. Wmhs Braddock Hospital Corporation

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1930
ISAAC ISAIAH, M.D.,
Plaintiff - Appellant,
v.
WMHS BRADDOCK HOSPITAL CORPORATION; MEMORIAL HOSPITAL AND
MEDICAL CENTER OF CUMBERLAND, INCORPORATED,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge.
(1:07-cv-02197-JFM)
Submitted: July 31, 2009 Decided: September 1, 2009
Before WILKINSON, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Conrad W. Varner, VARNER & GOUNDRY, P.C., Frederick, Maryland,
for Appellant. Jack C. Tranter, Sarah Downing Howard, GALLAGHER
EVELIUS & JONES LLP, Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Isaac Isaiah, M.D., appeals an order granting summary
judgment against him in an action he brought against WMHS
Braddock Hospital Corp., et al. (collectively “WMHS”). Because
Dr. Isaiah does not challenge one of the bases for the decision
against him, we affirm.
Dr. Isaiah initiated the present action alleging several
state claims against WMHS arising from the precautionary
suspension and subsequent revocation of his medical privileges
at WMHS. Federal jurisdiction is based on diversity. See 28
U.S.C. § 1332.
The district court considered both parties’ motions for
summary judgment, and granted WMHS summary judgment upon two
distinct and independent grounds, (1) immunity under the federal
Health Care Qualified Immunity Act (“HCQIA”), 42 U.S.C. § 11112,
et al., and (2) immunity under the Maryland statutes providing
immunity for peer review activity, Md. Code Ann., Health Occ. §
14-502 and Cts. & Jud. Proc. § 5-638. The district court’s
order granting summary judgment to WMHS is based accordingly.
On appeal, although Dr. Isaiah challenges the district
court’s ruling on the issue of immunity under the HCQIA, he does
not challenge the district court’s determination that WMHS was
entitled to immunity under the Maryland statute. Dr. Isaiah
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does not mention the judgment of immunity under Maryland law in
his statement of issues or anywhere else in his brief.
WMHS contends that because Dr. Isaiah failed to challenge
this separate, but equally dispositive, ruling, he has waived
the right to challenge it on appeal. We agree.
Federal Rule of Appellate Procedure 28(a)(9)(A) requires
that the argument section of an appellant’s opening brief must
contain the “appellant’s contentions and the reasons for them,
with citations to the authorities and parts of the record on
which the appellant relies.” Failure to comply with the
specific dictates of this rule with respect to a particular
claim triggers abandonment of that claim on appeal. See 11126
Baltimore Boulevard, Inc. v. Prince George’s County, 58 F.3d
988, 993 n.7 (4th Cir. 1995) (en banc). Furthermore, Federal
Rule of Appellate Practice 28(a)(5) requires a statement of
issues presented for review, but Dr. Isaiah’s statement of
issues does not raise any claim of error as to the district
court’s judgment of immunity under Maryland law. Because Dr.
Isaiah failed to challenge the district court’s ruling as to
immunity under the Maryland statutes, he has waived the right to
review of that ruling on appeal.*
(Continued)
* Despite this specific point being raised in the Appellees’
brief, Dr. Isaiah did not file a reply brief, and the time for
filing it has long passed. Even if he had addressed the issue
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Immunity under the HCQIA is a separate legal analysis from
the grant of immunity for peer review actions under the Maryland
statute. In Imperial v. Suburban Hospital Ass’n, 37 F.3d 1026
(4th Cir. 1994), we observed that the Maryland statute is
“broader in scope than the immunity granted by the [HCQIA],” and
noted that the state statute extends immunity to “all civil
liability” and is based on whether an individual “acts in good
faith and within the scope of the jurisdiction of a Medical
Review committee.” Id. at 1031-32 & 1031 n.* (emphasis
omitted). Similarly, the Maryland Court of Appeals has stated:
[B]ecause the Maryland statute requires that a member
of a review committee act in good faith, while the
HCQIA employs objective standards of reasonableness,
“the State law . . . may, in some circumstances,
provide additional immunity or protection to medical
review bodies. The State law is preempted by the
Federal only to the extent that it provides less
immunity than the Federal, not to the extent it
provides more.”
Goodwich v. Sinai Hosp., 680 A.2d 1067, 1082 (Md. 1996)
(emphasis omitted). While a person is only exempt under the
HCQIA when the objective standards set forth in that statute are
satisfied, a person who does not meet those objective standards
in a reply brief, the Court will generally not consider issues
raised for the first time in that manner, United States v.
Brooks, 524 F.3d 549, 556 n.11 (4th Cir. 2008), or in oral
argument. Goad v. Celotex Corp., 831 F.2d 508, 512 n.12 (4th
Cir. 1987).
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may still be entitled to immunity under the Maryland statute if
those actions “were nonetheless taken in good faith.” Bender v.
Suburban Hosp., Inc., 758 A.2d 1090, 1104 (Md. Ct. Spec. App.
2000).
Because the Maryland statute provides an independent basis
for the district court’s judgment granting summary judgment to
WMHS, and because Dr. Isaiah has abandoned any challenge to that
determination on appeal by failing to raise it in his opening
brief, there is no reason to consider the underlying merits of
his HCQIA-based claim. Dr. Isaiah had to challenge both bases
for the district court’s judgment in order to prevail on appeal.
See, e.g., Atwood v. Union Carbide Corp., 847 F.2d 278, 280 (5th
Cir. 1988) (holding that where an issue “constituted an
independent ground for [the disposition] below, appellants were
required to raise it to have any chance of prevailing in [their]
appeal”). Even if Dr. Isaiah’s appeal were successful, the
alternate basis for the district court’s judgment would stand,
and Dr. Isaiah’s appeal would be of no effect.
Because Dr. Isaiah has waived review of the district
court’s independent and alternate ground for its judgment, we
conclude that oral argument would not assist the decisional
process. For the aforementioned reasons, we affirm the district
court’s order granting summary judgment to WMHS.
AFFIRMED

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