Serir v. Illinois Central College

FEYZ v MERCY MEMORIAL HOSPITAL Docket No. 128059. Argued May 2, 2006 (Calendar No. 5). Decided July 24, 2006. Bruce B. Feyz, M.D., brought an action in the Monroe Circuit Court against Mercy Memorial Hospital, a private hospital, and members of its staff, seeking injunctive relief and damages relating to his placement on indefinite probation by the defendants. The plaintiffs complaint included civil rights, contract, and tort claims. The court, Joseph A. Costello, Jr., J., granted summary disposition for the defendants, citing the doctrine of judicial nonintervention in the staffing decisions of private hospitals, as well as statutory immunity arising from the peer review committee referral of the plaintiff for psychological evaluation. The plaintiff appealed. The Court of Appeals, Sawyer and Smolenski, JJ. (Murray, PJ., concurring in part and dissenting in part), affirmed in part, reversed in part, and remanded the matter to the trial court for further proceedings. 264 Mich App 699 (2005). The Court of Appeals concluded that peer review immunity does not apply to statutory civil rights claims, that an alleged civil rights violation was not within the scope of peer review, and that an alleged civil rights violation was “a malicious act.” The Court also held that the nonintervention doctrine did not prevent the plaintiff from pursuing his civil rights claims, nor did the doctrine generally preclude the plaintiffs contract and tort claims. Finally, the Court held that a private hospital’s staffing decisions are subject to the same level of judicial review as would apply to the actions of any other private entity. The Supreme Court granted the defendants’ application for leave to appeal. 474 Mich 957 (2005). In an opinion by Justice Young, joined by Chief Justice Taylor and Justices Corrigan and Markman, the Supreme Court held-. 1. The doctrine of judicial nonintervention cannot supplement or supplant the statutory immunify granted by the Legislature through the peer review immunity statute. There is no basis to justify the application of a nonintervention doctrine to general staffing decisions of a private hospital. 2. The statutorily prescribed scope of judicial review over the peer review process is narrow. The Legislature codified limited judicial review of the peer review process, permitting judicial review only when peer review participants act with malice. 3. Malice, for purposes of MCL 331.531(4), can be established when a person supplying information or data to a peer review entity does so with knowledge of its falsity or with reckless disregard of its truth or falsity. A review entity is not immune from liability if it acts with knowledge of the falsity, or with reckless disregard of the truth or falsity, of information or data that it communicates or upon which it acts. 4. A hospital is not a protected review entity under the peer review immunity statute. The immunity granted by the peer review immunity statute extends only to the communications made, and the participants who make them, in the peer review process, as well as to the communicative acts taken by a statutorily protected peer review entity acting within its scope, not to the hospital that makes the ultimate decision on staffing credential questions. Justice Cavanagh, joined by Justices Weaver and Kelly, concurring in part and dissenting in part, agreed that no justification exists in this state for recognizing the judicial nonintervention doctrine and that the doctrine should not be applied to a private hospital’s general staffing decisions, but dissented from the majority’s definition of “malice” as used in MCL 331.531. “Malice” should not be defined under the principles of “actual malice” used in defamation law. Rather, the term should be defined to mean the “intent, without justification or excuse, to commit a wrongful act” or “reckless disregard of the law or of a person’s legal rights.” To define the term otherwise ignores the statutory language. The trial court should be directed on remand to apply the appropriate legal definition of “malice.” Court of Appeals judgment vacated; case remanded to the trial court for further proceedings. 1. Hospitals — Staffing Decisions — Judicial Nonintervention Doctrine. The doctrine of judicial nonintervention, which suggests that the staffing decisions of a private hospital are generally beyond the scope of judicial review, is inconsistent with the statutory peer review process established by MCL 331.531 and is repudiated. 2. Hospitals — Peer Review Immunity — Exceptions — Malice. Malice, for purposes of the statutory hospital peer review process, exists when a person supplying information or data to a peer review entity does so with knowledge of its falsity or with reckless disregard of its truth or falsity; a peer review entity is not immune from liability if it acts with knowledge of the falsity, or with reckless disregard of the truth or falsity, of the information or data that it communicates or upon which it acts (MCL 331.531[4]). 3. Hospitals — Peer Review Immunity — Peer Review Entities. A hospital is not a protected review entity under the peer review immunity statute; the immunity granted by the peer review immunity statute extends only to the communications made, and the participants who make them, in the peer review process, as well as to the communicative acts taken by a statutorily protected peer review entity acting within its scope, not to the hospital that makes the ultimate decision on staffing credential questions. Jeffrey L. Herron for the plaintiff. Kitch Drutchas Wagner Valitutti & Sherbrook (by Susan Healy Zitterman and Karen B. Berkery) for the defendants. Amici Curiae: Clark Hill PLC (by Robert L. Weyhing and Paul C. Smith) for Michigan Osteopathic Association. Kerr, Russell and Weber, PLC (by Joanne Geha Swanson and Daniel J. Schulte), for Michigan State Medical Society. Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Ron D. Robinson, Assistant Attorney General, for the Michigan Civil Rights Commission and the Michigan Department of Civil Rights. Hall, Render, Killian, Heath & Lyman, PLLC (by Michael J. Philbrick), for Michigan Health & Hospital Association. YOUNG, J. Plaintiff is a physician with staff privileges at defendant Mercy Memorial Hospital. This lawsuit arises from an internecine dispute over nursing orders for patient intake at the defendant hospital. Plaintiffs insistence on requiring the nursing staff to use his special standing orders instead of defendant hospital’s standing orders eventually led to a conflict with defendant hospital and a peer review of plaintiffs professional practices as well as disciplinary action. Plaintiffs challenge of the peer review conducted by some of the defendants and the resulting disciplinary action taken against him requires that we consider the scope of immunity provided for peer review. In order to promote effective patient care in hospitals, the Legislature enacted MCL 331.531, commonly referred to as Michigan’s peer review immunity statute. The purpose of statutory peer review immunity is to foster the free exchange of information in investigations of hospital practices and practitioners, and thereby reduce patient mortality and improve patient care within hospitals. The Legislature obviously intended to protect peer review participants from liability for participation in this communicative and evaluative process. In order to create an environment in which such candid explorations of the quality of hospital patient care can occur, among other protections, the Legislature prohibited the discovery of communications made within the peer review process and granted immunity from liability to all who participate in peer review without “malice.” The primary question posed in this appeal is the scope of judicial review of peer review permitted under MCL 331.531. A secondary question is whether the judicially created “doctrine of nonintervention” — a doctrine suggesting that staffing decisions of private hospitals are generally beyond the scope of judicial review — is compatible with the peer review immunity statute. Finally, we must also construe the undefined peer review statutory term “malice.” Because the peer review immunity statute establishes qualified immunity from liability for peer review communication and participants who provide such communications, we conclude that there is no justification for recognizing the nonintervention doctrine that the lower courts in this state have applied in considering claims arising from peer review. We therefore hold that this doctrine cannot supplement or supplant the statutory immunity granted by our Legislature. Furthermore, there is no basis, statutory or otherwise, to justify the application of a nonintervention doctrine to general staffing decisions of a private hospital. We also hold that, consistent with the objects of the peer review immunity statute, malice should be defined as set forth by the Court of Appeals in Veldhuis v Allan. Thus, we hold that malice can be established when a “person supplying information or data [to a peer review entity] does so with knowledge of its falsity or with reckless disregard of its truth or falsity. Similarly, a review entity is not immune from liability if it acts with knowledge of the falsity, or with reckless disregard of the truth or falsity, of information or data which it communicates or upon which it acts.” Accordingly, we vacate the judgment of the Court of Appeals and remand this case to the Monroe Circuit Court for further proceedings consistent with this opinion. FACTS AND PROCEDURAL HISTORY Plaintiff is a physician with staff privileges at defendant Mercy Memorial Hospital. Plaintiff was dissatisfied with defendant hospital’s standard nursing policy requiring nurses to document patients’ prescribed medications and dosages by either copying the label on their prescription containers or copying a list of medications carried by patients. As a consequence, plaintiff created his own specialized orders directing the nursing staff to obtain very specific information from plaintiffs incoming patients about their prescription drug use. Plaintiffs orders directed the nursing staff, as part of the admissions process for his patients, to assume a far more aggressive investigative role regarding patient medication. Defendants disapproved plaintiffs standing orders, and instructed the nursing staff to ignore them. In several cases where the nurses disregarded plaintiffs special orders and followed defendant hospital’s nursing directives, plaintiff prepared “incident reports” referring such cases to peer review committees for investigation of “potential medical errors.” Further, plaintiff began making notations in patient records that his disregarded orders were intended to “[p]revent serious medication errors in the past.” Defendants initiated peer review proceedings against plaintiff based on plaintiffs failure to complete medical records and his insistence that the nursing staff follow his standing orders rather than comply with hospital policy. An ad hoc investigatory committee reviewed plaintiffs conduct and released its findings to the executive committee of defendant medical staff. Relying on the ad hoc committee’s report, the executive committee referred plaintiff to the Health Professionals Recovery Program (HPRP) for a psychiatric examination. Plaintiff was placed on temporary probation. Plaintiff alleges that he ceased writing his standard orders because, in compromise, defendant hospital gave plaintiff use of the pharmacy consult service to implement plaintiffs special orders. It appears that plaintiffs orders regarding patient medication overburdened the staff of the pharmacy consult service, so the hospital eventually discontinued this arrangement. Thereafter, plaintiff resumed placing his specialized orders in patients’ medical charts. As a consequence, defendants took further action and placed plaintiff on indefinite probation. Plaintiff continues to practice medicine and retains privileges at defendant hospital, but is restricted from using defendant hospital’s pharmacy consult service or insisting on compliance with his special orders. Plaintiff filed a complaint alleging violations of the Persons with Disabilities Civil Rights Act, the Americans with Disabilities Act, the Rehabilitation Act of 1973,* and 42 USC 1983 and 1985; invasion of privacy; breach of fiduciary and public duties; and breach of contract. The trial court granted summary disposition to defendants, concluding that all of defendants’ actions arose out of the peer review process and therefore defendants were immune from liability under MCL 331.531. The court, as an alternative basis for granting summary disposition, relied on the doctrine of judicial nonintervention, which provides that courts will not review private hospitals’ staffing decisions. The Court of Appeals, in a split decision, partially reversed the trial court’s award of summary disposition in favor of defendants, concluding that peer review immunity did not apply to statutory civil rights claims. The majority concluded that an alleged civil rights violation was not within the scope of peer review and that an alleged civil rights violation was “a malicious act.” Furthermore, the majority held that the nonintervention doctrine did not prevent plaintiff from pursuing his civil rights claims, nor did the doctrine generally preclude plaintiffs contract and tort claims. The majority held that the doctrine stands for the limited proposition that a private hospital’s staffing decisions are not subject to constitutional due process challenges. The majority concluded that the nonintervention doctrine did not create any greater insulation from judicial scrutiny than that enjoyed by any other private entity. In other words, the majority held that a private hospital’s staffing decisions are subject to the same level of judicial review as would apply to the actions of any other private entity. The Court of Appeals dissent agreed that an unlawful act of discrimination constituted malice, but disagreed that an unlawful discriminatory act was per se outside the scope of a peer review committee. The dissent would have affirmed the trial court’s dismissal of plaintiffs tort and contract counts. The dissent also concluded that the majority improperly limited the scope of the nonintervention doctrine. The dissent opined that the nonintervention doctrine precluded judicial review of contract and contract-related tort claims arising from hospital staffing decisions with regard to all defendants. This Court granted defendants’ application for leave to appeal. STANDARD OF REVIEW The trial court granted defendants summary disposition under MCR 2.116(C)(8). A trial court’s grant of summary disposition is reviewed de novo. A motion for summary disposition brought pursuant to MCR 2.116(C)(8) tests the legal sufficiency of the complaint on the allegations of the pleadings alone. When a challenge to a complaint is made, the motion tests whether the complaint states a claim as a matter of law, and the motion should be granted if no factual development could possibly justify recovery. Questions of statutory interpretation, such as the proper construction of the peer review immunity statute, are reviewed de novo. Our role is to give effect to the intent of the Legislature, as expressed by the language of the statute. We apply clear and unambiguous statutes as written, under the assumption that the Legislature intended the meaning of the words it has used in the statute. In defining statutory words, we must consider the “plain meaning of the critical word or phrase as well as ‘its placement and purpose in the statutory scheme.’ ” While words are construed according to their plain and ordinary meaning, words that have acquired a peculiar and appropriate meaning in the law are construed according to that peculiar and appropriate meaning. ANALYSIS In Michigan, the Legislature has commanded hospitals to establish peer review committees to review “professional practices” in order to “redue[e] morbidity and mortality and improv[e] the care provided in the hospital for patients.” That review must “include the quality and necessity of the care provided and the preventability of complications and deaths occurring in the hospital.” In turn, hospitals use peer review evaluations when making staffing decisions. A. THE JUDICIAL NONINTERVENTION DOCTRINE AND THE SCOPE OF JUDICIAL REVIEW OF PEER REVIEW The judicial nonintervention doctrine is a judicially created common-law doctrine providing that courts will not intervene in a private hospital’s staffing decisions. The concerns that gave rise to this doctrine are twofold. The doctrine is premised, in part, on the distinction between public and private hospitals. While public hospitals are state actors impheating adherence to constitutional requirements, such as affording due process to physicians, private hospitals are not similarly constrained because they are not state actors. Therefore, it was posited that a private hospital’s staffing decisions merit less judicial scrutiny. The doctrine is also founded on the belief that courts are ill-equipped to review hospital staffing decisions because courts lack the specialized knowledge and skills required to adjudicate hospital staffing disputes. The judicial nonintervention doctrine, therefore, is a prudential doctrine not grounded in statutoiy or constitutional provisions that courts have invoked to resist adjudicating claims involving hospital staffing decisions and the decision-making process. In Shulman v Washington Hosp Ctr, a seminal case describing the doctrine, the United States District Court for the District of Columbia explained its foundational premises as follows: Judicial tribunals are not equipped to review the action of hospital authorities in selecting or refusing to appoint members of medical staffs, declining to renew appointments previously made, or excluding physicians or surgeons from hospital facilities. The authorities of a hospital necessarily and naturally endeavor to their utmost to serve in the best possible manner the sick and the afflicted who knock at their door. Not all professional men, be they physicians, lawyers, or members of other professions, are of identical ability, competence, or experience, or of equal reliability, character, and standards of ethics. The mere fact that a person is admitted or licensed to practice his profession does not justify any inference beyond the conclusion that he has met the minimum requirements and possesses the minimum qualifications for that purpose. Necessarily hospitals endeavor to secure the most competent and experienced staff for their patients. Without regard to the absence of any legal liability, the hospital in admitting a physician or surgeon to its facilities extends a moral imprimatur to him in the eyes of the public. Moreover not all professional men have a personality that enables them to work in harmony with others, and to inspire confidence in their fellows and in patients. These factors are of importance and here, too, there is room for selection. In matters such as these the courts are not in a position to substitute their judgment for that of professional groups. Relying on Shulman, the Michigan Court of Appeals adopted the doctrine of judicial nonintervention in Hoffman v Garden City Hosp. The plaintiff in Hoffman sued a private hospital for denying him staff privileges, claiming, in part, that the hospital’s decision to deny privileges was “arbitrary, capricious and unreasonable... ,” The defendant prevailed in the trial court on its motion for summary disposition. On appeal, the plaintiff urged the Court of Appeals to adopt the position that a private hospital holds a fiduciary duty to make its staffing decisions reasonably and for the pu

FEYZ v MERCY MEMORIAL HOSPITAL Docket No. 246259. Submitted December 14, 2004, at Detroit. Decided January 13, 2005, at 9:00 a.m. Leave to appeal sought. Bruce B. Feyz, M.D., brought an action in the Monroe Circuit Court against Mercy Memorial Hospital, a private hospital, and members of its Executive Committee and staff, seeking injunctive relief and damages relating to his placement on indefinite probation by the defendants. The plaintiffs complaint included contract, tort, and statutory antidiscrimination claims. The court, Joseph A. Costello, Jr., J., granted summary disposition for the defendants, citing the doctrine of judicial nonreviewability of the staffing decisions of private hospitals, as well as statutory immunity arising from the peer review committee referral of the plaintiff for psychological evaluation. The plaintiff appealed. The Court of Appeals held-. 1. The peer review statute, MCL 331.531(3)(b), generally grants a peer review committee of a hospital immunity for any act or communication within the committee’s scope as a review entity. There is no indication in the various civil rights acts specifically excluding a peer review committee. Similarly, there is no indication in the statute that would exclude a peer review committee from compliance with the various civil rights acts. The peer review statute is not absolute. At MCL 331.531(4), it specifically denies immunity for anyone acting with malice, that state of mind that is reckless of law and of the legal rights of others. Acting against statutory rights, such as civil rights, would represent a malicious act. 2. The trial court erred in using the doctrine of judicial nonreviewability of staffing decisions of private hospitals with regard to claims brought under statutes such as the Civil Rights Act. That doctrine does not preclude such claims. The principle of nonreviewability insulates a private hospital from attacks on its staffing decisions more than a public hospital is insulated, but not more than any other private employer. 3. A private hospital is capable of committing torts, and, when it does, it is a subject to be held hable as any other private corporation. The trial court improperly granted summary disposition against the plaintiffs count of invasion of privacy. 4. A private hospital is subject to the same breach of contract claims as any other private corporation. If the trial court determines that a breach of contract claim may be based on a corporation’s violation of its own bylaws, such a claim may be viable despite the nonreviewability doctrine. Affirmed in part, reversed in part, and remanded to the trial court for further proceedings. Murray, EJ., concurring in part and dissenting in part, agreed with the majority’s conclusion that the plaintiffs civil rights claims are subject to judicial review and that the peer review statute does not provide the hospital with immunity to statutory civil rights claims. However, he disagreed with the majority’s conclusion that case law does not preclude judicial review of contract and contract-related tort claims relating to a private hospital’s decision regarding a physician’s staff privileges, because the purpose of the statute granting immunity for the peer review committee would be defeated. The peer review immunity statute excepts decisions made with malice from immunity. The act of the peer review committee in sending the plaintiff to the Health Frofessional Recovery Frogram as a condition of remaining on staff, but with the committee’s full knowledge that he had no mental or physical limitations, would constitute malice in the decision-making process. Similarly, to the extent the plaintiff alleged a viable civil rights claim through other allegations, that statutory violation would also fall within the definition of malice in the decision-making process. The remaining tort and contract claims, to the extent they do not rely on the referral to the Health Frofessional Recovery Program, do not fall within the definition of malice and, so, are barred by the peer review statute, MCL 331.351. The tort claims that do allege improper referral are barred by the doctrine of nonreviewability. The trial court properly concluded that it could not review the plaintiffs contract and tort claims without intervening in the hospital’s decision and the peer review process. This Court should adhere to and support the rule that generally prohibits judicial review of the actions of a private hospital in disciplining a staff physician. 1. Hospitals — Peer Review Committee Immunity. The immunity afforded by the peer review statute does not extend to decisions made with malice, which would include violations of statutes such as civil rights acts (MCL 333.531). 2. Hospitals - Private Hospitals - Civil Liability. A private hospital is subject to the same potential civil liability of any private corporation that violates an employment statute, breaches a contract, or commits a tort. Jeffrey L. Herron for the plaintiff. Kitch Drutchas Wagner DeNardis & Valitutti (by Susan Healy Zitterman and Karen B. Berkery) for the defendants. Before: MURRAY, EJ., and SAWYER and SMOLENSKL, JJ. SAWYER, J. We are asked in this case to determine whether the doctrine that staffing decisions of private hospitals are not subject to judicial review precludes all such review, including claims brought under statutes such as the Civil Rights Act. We hold that the doctrine does not preclude such claims and reverse in part the trial court’s grant of summary disposition dismissing all the plaintiffs various claims against defendant. Plaintiff is a physician with staff privileges at defendant hospital. The individual defendants hold various administrative posts as the hospital. This action has its roots in a dispute between plaintiff and the hospital administration regarding various standing orders that plaintiff wrote with respect to his patients. Specifically, plaintiff directed the nursing staff, as part of the admissions process, to inquire of patients which medications they were taking at home and how they were taking those medications. Plaintiff explains that, in his experience, patients often do not take medications according to the instructions of the prescribing physician. He indicated that he believed he needed to know how the medications were actually being used by the patients, not merely how the patients were supposed to be taking the medications. The hospital administration reacted unfavorably to these standing orders. In fact, the nursing staff was directed to ignore the instructions. It was suggested to plaintiff that he raise the issue administratively, apparently with the end purpose of a uniform policy being adopted if merit was found in plaintiffs request. Although plaintiff pursued this route, it did not result in the adoption of a policy incorporating plaintiffs standing orders. The dispute was renewed. Ultimately, plaintiff was placed on indefinite probation, as well as a referral being made for a psychological examination of plaintiff (which plaintiff reports did not result in the diagnosis of a mental illness). Plaintiff thereafter instituted this action, filing multiple claims against defendants. The trial court granted summary disposition for the defendants, citing the doctrine of judicial nonreviewability of the staffing decisions of private hospitals, as well as statutory immunity arising from the referral of a physician for medical evaluation. Specifically, the trial court opined as follows: Each of Plaintiffs claims arise out of activity involving a peer/professional review committee. Defendant asserts MCL 331.531 as a basis for immunity from liability. MCL 331.531 grants immunity to hospitals such as Defendant, which act within their scope as a review entity, as did the Defendants in this case. Plaintiff is correct that the immunity granted under the statute is “qualified” immunity, that is, immunity only where no malice has occurred, not “complete” immunity as asserted by the Defendants. However, no clear and convincing proof of malice can be found in Plaintiffs brief. Furthermore, according to both Regualos v. Community Hos, 364 N.W2d 723, 726 [140 Mich App 455 (1985)], and Hoffman v. Garden City Hospital — Osteopathic, 321 N.W2d 810 [115 Mich App 773 (1982)], decisions of governing bodies of private hospitals cannot be subjected to judicial review. Therefore, Summary Disposition should be granted pursuant to MCR 2.116(C)(8) upon the basis of the “Michigan Peer Review Statute” (MCL 331.531). It is clear that all causes of action in this case arise from the activity of the Defendants’ peer review board and thereby subjected to the said Peer Review Statute. Therefore, all other issues regarding Summary Disposition of this case need not be addressed. Because the trial court placed the greater emphasis on the peer review statute, we shall begin our analysis there. MCL 331.531 provides in pertinent part as follows: (1) A person, organization, or entity may provide to a review entity information or data relating to the physical or psychological condition of a person, the necessity, appropriateness, or quality of health care rendered to a person, or the qualifications, competence, or performance of a health care provider. (2) As used in this section, “review entity” means 1 of the following: (a) A duly appointed peer review committee of 1 of the following: (iii) A health facility or agency licensed under article 17 of the public health code, 1978 PA 368, MCL 333.20101 to 333.22260. (3) A person, organization, or entity is not civilly or criminally liable: (a) For providing information or data pursuant to subsection (1). (b) For an act or communication within its scope as a review entity. (c) For releasing or publishing a record of the proceedings, or of the reports, findings, or conclusions of a review entity, subject to sections 2 and 3. (4) The immunity from liability provided under subsection (3) does not apply to a person, organization, or entity that acts with malice. We turn first to plaintiffs allegations regarding violations of various civil rights acts. Plaintiffs complaint included counts alleging violations of the Persons With Disabilities Civil Rights Act, MCL 37.1101 et seq., the Americans With Disabilities Act, 42 USC 12101 et seq., the federal civil rights act, specifically 42 USC 1983 and 1985, and the Vocational Rehabilitation Act, specifically 29 USC 794. Even if the trial court is correct that all of plaintiffs claims arise out of the actions of a peer review committee, the peer review statute does not grant immunity for those actions that violate a civil rights act. We base this determination on two reasons. First, the peer review statute only grants immunity for “an act or communication within [the peer review committee’s] scope as a review entity.” MCL 331.531(3)(b). It is not within the scope of a peer review committee to violate someone’s civil rights. There is no indication in the various civil rights acts at issue here that peer review committees were excluded from the scope of those acts, nor is there any indication that the peer review statute intended to exclude peer review committees from compliance with the various civil rights acts. Indeed, the fact that immunity under the peer review statute is not absolute is reflected by the fact that § 4 denies immunity to a person, organization, or entity that acts with malice. Which brings us to the second reason, namely, that we view a violation of a civil rights act as being a malicious act. The following portion of the definition of “malice” from Black’s Law Dictionary (5th ed) is particularly apt in this situation: “Malice in law is not necessarily personal hate or ill will, but it is that state of mind which is reckless of law and of the legal rights of the citizen.” The various civil rights acts adopted by the state Legislature and the United States Congress establish the legal rights of the citizens, including plaintiff. If defendants acted in disregard of those rights, doing so represents a malicious act and, therefore, is outside the scope of immunity granted by the peer review statute. We pause here to address an obvious flaw that permeates defendants’ brief on appeal and, to a lesser extent, the trial court’s opinion. That flaw is the argument raised that plaintiff is unable to factually support his claims. This is demonstrated by the following passage from defendants’ brief on appeal discussing the malice issue: “After reviewing the facts and record before it, the trial court then concluded that ‘no clear and convincing proof of malice can be found in Plaintiff’s brief.’ ” (Emphasis supplied by defendants.) But summary disposition was granted under MCR 2.116(C)(8) (failure to state a claim), not C(10) (no genuine issue of material fact). Furthermore, the trial court’s analysis was even more narrow in that it did not even determine if plaintiff had adequately pleaded violations of the various civil rights acts. Rather, the trial court limited its decision to whether plaintiff had adequately pleaded in avoidance of the immunity granted by the peer review statute and in avoidance of the doctrine of judicial nonreviewability of staffing decisions by private hospitals. Therefore, the question whether plaintiff can factually support his claims of civil rights violations is not before us, nor, for that matter, is the question whether plaintiff even adequately plead those causes of action. The only question before us in this appeal, with respect to the counts of the complaint that allege the statutory civil rights violations, is whether a claim of such a violation falls outside the scope of immunity granted by MCL 331.531. For the reasons stated above, we conclude that it does. Accordingly, the trial court erred in granting summary disposition under MCR 2.116(C)(8) with respect to counts I through IV of plaintiffs complaint on the basis of the immunity granted by MCL 331.531. Additionally, plaintiffs complaint contains allegations of invasion of privacy (count V), breach of fiduciary and public duties (count VI), and breach of contract (count VII). The invasion of privacy count is based on plaintiffs allegations that the hospital’s Executive Committee, acting on recommendations by the ad hoc investigating committee, referred plaintiff to the state’s Health Professional Recovery Program (HPRP). Plaintiff alleges that he cooperated with the referral, submitting to a psychiatric evaluation, which determined that there was no mental health or substance abuse disorder and no reason for plaintiff to participate in an HPRP program. Count VI (breach of fiduciary and public duties) is somewhat more tenuous. Plaintiff alleges that defendant hospital has a duty to its staff and the community at large to operate the hospital in the interest of public health care and in a manner that permits the staff to meet its professional obligations to patients. Plaintiff alleges that defendants violated these duties by suppressing dialogue and debate among the staff regarding patient care issues, by ignoring the hospital and medical staff bylaws, by improperly influencing members of hospital and staff committees, by intimidating plaintiff, by referring plaintiff to the HPRR by conspiring to prevent medical staff from documenting errors in medical care, by retaliating against plaintiff, and by taking disciplinary action against plaintiff. Count VII (breach of contract) specifically alleges that the medical staff bylaws constitute a contract and that defendants repeatedly breached that contract by ignoring unspecified procedural requirements of the bylaws and by committing other unspecified violations of the bylaws. Turning first to count V the referral to the HPRP by the Executive Committee would clearly come within the scope of a peer review committee’s actions and, although plaintiff alleges that the referral proved unnecessary, plaintiffs complaint raises no allegations in this count that would indicate that the referral was maliciously made. Therefore, our focus turns to plaintiffs argument that the Executive Committee does not constitute a peer review committee under the statute and, therefore, is not entitled to the immunity the statute affords. MCL 331.531(2) (a) does not define “review entity” with specificity or limitation. Indeed, the only restrictions imposed by the statute regarding what constitutes a “review entity” under the statute is that it must be a “duly appointed peer review committee” of one of the institutions listed in the statute. It is undisputed that the hospital is such an institution. Plaintiff, however, disputes that the Executive Committee has been “duly appointed” as a peer review committee. In response, defendants only argue that the ad hoc committee formed to investigate the allegations against plaintiff made by the hospital constitutes a “duly appointed review committee” under the medical staff bylaws. Paragraph 57 of plaintiffs complaint, however, alleges that it is the Executive Committee, not the ad hoc committee, which made the HPRP referral that is the basis for the allegations in count V The ad hoc committee’s status as a peer review committee grants that committee immunity, but that does not make the Executive Committee a peer review committee and, therefore, does not grant the Executive Committee immunity. We do note that summary disposition to the individual defendants with regard to count V would be appropriate to the extent that the only basis for their liability would be their participation in the ad hoc committee’s investigation and the recommendations made to the Executive Committee. Turning to count VI, we begin by noting that the allegations of duties and breaches of those duties are so vague and nebulous that we are skeptical that count VI could survive a motion under MCR 2.116(C)(8) that directly attacks whether it states a claim in its own right. But, as noted above, the trial court granted summary disposition on the narrow ground that the claim does not survive the grant of immunity under the peer review statute. In this respect, the allegations do not appear to allege liability based on the actions of the ad hoc committee, the only entity that defendant has identified as being a duly appointed peer review committee. Therefore, summary disposition based on the peer review statute was improper. Turning to count VII, in which, as in count VI, the allegations are extremely vague, we are once again skeptical that it could survive a motion for summary disposition if the motion were decided on broader grounds than that employed by the trial court. But the allegations in this count, such as they are, clearly implicated activity beyond that of the ad hoc committee. Accordingly, plaintiff states (or attempts to state) a cause of action that is broader than the activity that would come within the statutory grant of immunity. Therefore, while summary disposition of this count may ultimately prove appropriate, it is not appropriate on the ground given by the trial court with respect to the immunity granted by the peer review statute. Having concluded that, with the possible minor exception of claims against individual members of the ad hoc committee under count V of the complaint, summary disposition under the grant of immunity in the peer review statute was improper, we turn to the other basis cited by the trial court, the doctrine of nonreviewability of staffing decisions by private hospitals. Although, given the state of the law in this area, the trial court’s conclusions are understandable, a careful examination of the doctrine and its historical roots reveals that its applicability is not so broad as to prevent plaintiffs cause of action in this case. The doctrine that staffing decisions at private hospitals are not subject to judicial review has its roots in Michigan jurisprudence in the case of Hoffman v Garden