author: SABERS, Justice. MEIERHENRY, Justice

text:
    2007 SD 33
    Paul A. WOJEWSKI, M.D., Plaintiff and Appellant, v. RAPID CITY REGIONAL HOSPITAL, INC., Charles Hart, M.D., and Robert Glenn Allen, Jr., M.D., Defendants and Appellees.
    No. 23954.
    Supreme Court of South Dakota.
    Argued Jan. 9, 2007.
    Decided March 28, 2007.

      See also 450 F.3d 338.

      Michael P. Reynolds of Barker Reynolds Law Firm L.L.C., Rapid City, South Dakota, and Kenneth E. Barker of Barker Reynolds Law Firm L.L.C., Belle Fourche, South Dakota, Attorneys for appellant, Sara Wojewski, Special Administrator for Estate.
    Daniel G. Wilczek, Daniel M. Lovejoy of Faegre & Benson L.L.P., Minneapolis, Minnesota, and Marvin D. Truhe, Rapid City, South Dakota, Attorneys for appel-lees.
   SABERS, Justice.

[¶ 1.] After Rapid City Regional Hospital (RCRH) removed Dr. Paul Wojewski’s (Wojewski) clinical privileges, Wojewski sued on a variety of theories. The circuit court granted RCRH’s motions to dismiss on one claim and its motion for summary judgment on the rest of the claims. Wo-jewski appealed. We affirm.

FACTS

[¶ 2.] Wojewski was a cardiothoracic surgeon who joined the medical staff of RCRH in 1988. In the summer of 1996, Wojewski started to exhibit unusual behavior. He suffered a manic episode in July of 1996, where he was arrested and underwent inpatient psychiatric treatment. Two months later, he suffered another manic episode.

[¶ 3.] He was diagnosed with bipolar disorder, and in September of 1996, took a leave of absence from RCRH. That same month he requested reinstatement to the RCRH medical staff. RCRH reinstated Wojewski, with conditions, after reviewing four psychiatric reports. Wojewski met all the conditions of his reinstatement and all conditions were removed in January 1999.

[¶ 4.] In June 2003, Wojewski had another manic episode. According to RCRH, Wojewski did not inform it of his manic episode. Instead, he took a voluntary leave of absence in July 2003, after informing the hospital of “his difficulties.”

[¶ 5.] Wojewski returned to RCRH on August 12, 2003. His privileges were subject to conditions, including a requirement that he inform RCRH of any changes in his mental health. Dr. James Oury was appointed to monitor Wojewski.

[¶ 6.] When Wojewski returned to RCRH, several individuals noticed he was acting strangely. As a result, a meeting was held the morning of August 19, 2003 to determine if Wojewski should be suspended or be allowed to continue with his surgery privileges. Wojewski had a surgery scheduled for that morning. The individuals involved in the meeting were Dr. Oury, Dr. Charles Hart, Dr. Robert Glenn Allen, Jr. and Dr. Dennis Nesbit. Prior to the meeting Wojewski’s psychiatrist, Dr. Steven Manlove, told Dr. Hart that Wo-jewski was not manic. Dr. Oury told the group he thought Wojewski could perform the scheduled surgery, based on his observations. The group concluded that Wo-jewski could perform the scheduled surgery and did not suspend him.

[¶ 7.] Unfortunately, Wojewski suffered a manic episode during the surgery. He refused to continue working on the patient and refused to allow anyone to help the patient. Wojewski was escorted from the operating room by security and Dr. Oury completed the surgery. Wojewski’s hospital privileges were subsequently suspended.

[¶ 8.] Wojewski requested a hearing and a Fair Hearing Panel was assembled. The Panel conducted a four-day hearing, where Wojewski was represented by counsel. At the conclusion of the hearing, the Panel determined Wojewski’s privileges should not be reinstated because of the threat of unpredictable future relapses due to his bipolar disease. The Panel’s decision was reviewed and upheld by an Appellate Review Committee and RCRH’s Board of Trustees.

[¶ 9.] Wojewski sued RCRH, Dr. Hart and Dr. Allen Jr. alleging six different counts: breach of contract, tortious interference with prospective business advantage, breach of fiduciary duty, aiding and abetting a breach of fiduciary duty, negligent infliction of emotional distress and intentional infliction of emotional distress. RCRH filed a motion to dismiss or, in the alternative, for summary judgment. The circuit court granted RCRH’s motion to dismiss on the basis of immunity. It also granted, as an alternative ground, the summary judgment motion on the state tort claims.

[¶ 10.] Wojewski appeals and raises the following issues:

1. Whether the Health Care Quality Improvement Act affords immunity to defendants for allowing Wojewski to perform surgery on August 19, 2003.
2. Whether the Impaired Physician Policy Statement is a contract.
3. Whether a tortious interference with prospective business advantage claim can stand when a party fails to act, rather than affirmatively acts.
4. Whether a fiduciary duty is created when a party purposely exercises complete control over a person’s body and actions.
5. Whether the court erred in granting summary judgment on the negligent infliction of emotional distress claim.
6. Whether the court erred in granting summary judgment on the intentional infliction of emotional distress claim.

STANDARD OF REVIEW

[¶ 11.] “It is well settled that ‘[a] motion to dismiss under Rule 12(b)(5) tests the law of a plaintiffs claim, not the facts which support it.’ ” Osloond v. Farrier, 2003 SD 28, ¶ 4, 659 N.W.2d 20, 22 (quoting Thompson v. Summers, 1997 SD 103, ¶ 5, 567 N.W.2d 387, 390 (additional citations omitted)). The circuit court,

considers] the complaint’s allegations and any exhibits which are attached. The court accepts the pleader’s description of what happened along with any conclusions reasonably drawn therefrom .... “In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” The question is whether in the light most favorable to the plaintiff, and with doubt resolved in his or her behalf, the complaint states any valid claim of relief. The court must go beyond the allegations for relief and “examine the complaint to determine if the allegations provide for relief on any possible theory.”

Id. (internal citations omitted). “An appeal of a motion to dismiss presents a question of law and our standard of ‘review is de novo, with no deference given to the trial court’s legal conclusions.’ ” Id. (quoting City of Colton v. Schwebach, 1997 SD 4, ¶ 8, 557 N.W.2d 769, 771).

[¶ 12.] Our review of a summary judgment is well settled.

In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper.

Read v. McKennan Hosp., 2000 SD 66, ¶ 8, 610 N.W.2d 782, 784 (quoting Coffee Cup Fuel Stops & Convenience Stores, Inc., v. Donnelly, 1999 SD 46, ¶17, 592 N.W.2d 924, 926) (additional citations omitted).

[¶ 13.] Whether the HCQIA affords immunity to RCRH for its August 19, 2003 meeting and its decision to allow Wojewski to perform surgery that day.

[¶ 14.] The Health Care Quality Improvement Act (HCQIA), 42 U.S.C. section 11101 et s eg., was passed “ ‘to improve the quality of medical care by encouraging physicians to identify and discipline physicians who are incompetent or who engage in unprofessional behavior.’ ” Sugarbaker v. SSM Health Care, 190 F.3d 905, 911 (8th Cir.1999) (quoting Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 632 (3d Cir.1996) (quoting H.R.Rep. No. 903, 99th Cong., 2d Sess. 2 (1986))). Congress gave immunity to participants engaged in professional peer review actions in order to advance effective peer review. Id. (citing 42 U.S.C. §§ 11101(5), 11111(a)).

[¶ 15.] For immunity to apply, the action must come within the statutory meaning of “professional review action.” Read, 2000 SD 66, ¶ 18, 610 N.W.2d at 785 (quoting 42 U.S.C. § 11151(9)). “Professional review action” is defined as,

an action or recommendation of a professional review body which is taken or made in the conduct of professional review activity, which is based on the competence or professional conduct of an individual physician (which conduct affects or could affect adversely the health or welfare of a patient or patients), and which affects (or may affect) adversely the clinical privileges, or membership in a professional society, of the physician. Such term includes a formal decision of a professional review body not to take an action or make a recommendation described in the previous sentence and also includes professional review activities relating to a professional review action.

42 U.S.C.A. § 11151(9) (emphasis supplied). “Professional review activity” is also covered by immunity and is defined as,

an activity of a health care entity with respect to an individual physician — (A) to determine whether the physician may have clinical privileges with respect to, or membership in, the entity, (B) to determine the scope or conditions of such privileges or membership, or (C) to change or modify such privileges or membership.

42 U.S.C.A. § 11151(10) (emphasis supplied).

[¶ 16.] Wojewski concedes the actions taken by RCRH after the August 19 surgery incident are immune from damages under the HCQIA. His sole contention is the August 19 morning meeting to discuss revoking Wojewski’s privileges and the subsequent decision to allow him to continue with surgery are 1) not peer review actions, or 2) the group was not a “professional review body” under HCQIA and the actions are not immune. Wojew-ski claims his six state law causes of action arise from this August 19 meeting and decision and should be actionable because they do not fall within HCQIA’s grant of immunity.

[¶ 17.] RCRH claims the August 19 morning meeting is “professional review activity” within the meaning of HCQIA and entitled to immunity. See 42 U.S.C.A. § 11151(10); Singh v. Blue Cross/Blue Shield of Mass., Inc., 308 F.3d 25, 36-37 n. 11 (1st Cir.2002). If its contention is correct, RCRH would be immune from the alleged damages of the state law causes of action and the circuit court’s grant of RCRH’s motion to dismiss would be proper. See 42 U.S.C.A. § 11111(a)(1) (“If a professional review action ... of a professional review body meets all the standards specified in section 11112(a) of this title ... [any person participating ] shall not be liable in damages under any law of the United States or of any State ... with respect to the action.”) (Emphasis supplied).

[¶ 18.] While the HCQIA was enacted in 1986, this is only the second time we have considered whether a hospital’s action falls within its immunity provisions. See Read, 2000 SD 66, ¶ 18, 610 N.W.2d at 785. Whether the actions in this case are “professional review activity” is a matter of first impression. See id. ¶ 19 (finding no immunity because the decision to non-renew the radiology privileges was based on an exclusive service contract and not on “the competence or professional conduct of a physician,” as required by the HCQIA).

[¶ 19.] In Mathews v. Lancaster General Hospital, the court found the term “professional review activity” to mean “preliminary investigative measures taken in ‘a reasonable effort to obtain the facts’ relevant to a possible change in a physician’s privileges_” 87 F.3d at 634 (quoting Mathews v. Lancaster Gen. Hosp., 883 F.Supp. 1016, 1027 (D.Pa.1995)). The court found a “professional review action” was “the decision that results from a review of the facts obtained.” Id. The professional review activities are a subpart of and precursor to the professional review action. Id. (“The definition of ‘professional review, action’ encompasses decisions or recommendations by peer review bodies that ... impose some lesser sanction that may eventually affect a physician’s privileges.”).

[¶ 20.] RCRH urges this Court to hold the meeting on the morning of August 19 was a professional review activity. Wo-jewski argues the meeting was simply to determine if that one surgery could continue and was not a determination of his surgical privileges. However, deciding if a doctor may perform surgery .at their hospital is a determination of whether the physician’s privileges should be modified. This meeting was clearly an activity that determined “whether the physician may have clinical privileges, [or] to determine the scope or conditions of such privileges ... or to change or modify such privileges....” See 42 U.S.C.A. § 11151(10). Therefore, the morning meeting meets the statutory definition of “professional review activity.” See id. The meeting was held for the purpose of determining whether Dr. Wojewski’s surgery privileges should be “changed or modified” or if he should be allowed to conduct surgery. See id.

[¶ 21.] In order to qualify for immunity, the professional review activity must “[relate] to the professional review action.” 42 U.S.C.A. § 11151(9). Therefore, the morning meeting must also “[relate] to a professional review action.” See id. The meeting is related in both time and subject matter to the professional review action. The meeting had the same subject matter as the professional review action — whether Wojewski should be allowed to perform surgery due to potential danger of his manic episodes. The meeting occurred shortly before the fair panel hearing was called to determine Wojewski’s surgical privileges. Because the meeting involved a modification or change in Wojewski’s surgery privileges it is a professional review activity; and, because it was related to the professional review action, the meeting is entitled to immunity. See Mathews, 87 F.3d at 634 (finding “a decision or recommendation to monitor the standard of care provided by a physician or factfind-ing to ascertain whether a physician has provided adequate care” are “professional review activities”); 42 U.S.C.A. § 11161(9)-(10).

[¶ 22.] Wojewski also claims the “ad hoc group” assembled that morning was not a “professional review body” carrying out “professional review action.” The next determination is whether the group of doctors that, met is a “professional review body” under HCQIA. “Professional review body” is defined as “a health care entity and the governing body or any committee of a health care entity which conducts professional review activity, and includes any committee of the medical staff of such an entity when assisting the governing body in a professional review activity.” 42 U.S.C.A. § 11151(11).

[¶ 23.] The informal group of doctors was “assisting the governing body in a professional review activity,” since it was determining whether Wojewski’s surgical privileges should be modified. Wojewski argues that this cannot be a committee because they had never met prior to this meeting or subsequent to the meeting and it did not issue a formal decision or notes. However, the definition does not require the committee to be formal, appointed or elected or retain the same members. It states that “any committee of the medical staff’ is a professional review body “when assisting the governing body in a professional review activity.”

[¶ 24.] In any event, Wojewski may argue the group -of doctors may not have immunity because they are not a “professional review body,” but we do not need to determine if the informal group meets the definition. First, the definition of “professional review activity” includes activities of a health care entity. Dr. Hart, as the interim CEO, and Dr. Oury, the physician responsible for supervising Wojewski, along with the other doctors, were acting on behalf of RCRH, the health care entity. Indeed, Wojewski concedes Dr. Hart and Dr. Allen were “acting on behalf of RCRH.” Brief for Appellant at 23, Wojew-ski v. Rapid City Reg’l Hosp., 2007 SD 33 (2007). Second, the statute grants immunity to not only the “professional review body” but also “any person who participates with or assists the body with respect to the action. ...” 42 U.S.C.A. § 11111(a)(1)(A)-(D). Because the doctors were engaging in professional review activities related to the professional review action (revoking Wojewski’s surgical privileges) the doctors are immune from liability. See 42 U.S.C.A. 11111(a)(1); 42 U.S.C.A. 11151(9).

[¶ 25.] Wojewski claims that if we decide this group has immunity for the August 19 meeting and decision, then we would have to give immunity every time two doctors met over coffee and discussed another physician’s qualifications. This argument downplays the power of this group of doctors and is irreconcilable with Wojewski’s other arguments. Wo-jewski argues that this same group had the power to stop, and in fact, should have, stopped him from performing surgery on August 19. Yet, Wojewski wants to deny the group immunity for any decision because it was not a professional review body or a committee assisting in the professional review action.

[¶ 26.] However, this was not a powerless group, or an impromptu discussion. This group was meeting to make a decision about Wojewski’s surgical privileges. Dr. Oury was charged with the responsibility of overseeing Wojewski after his medical privileges were reinstated, Dr. Hart was the interim CEO of the hospital, and Dr. Allen, Jr. was the Medical Director of Surgical Services. If this group had the power, as Wojewski claims, to stop him from performing surgery, then it follows that it had the power to allow him to retain his surgical privileges. It is these types of decisions that HCQIA immunize from liability.

[¶ 27.] The HCQIA was created to immunize physicians and hospitals that revoke or punish physicians from liability in order to facilitate these types of decisions. As the First Circuit stated, “In order to encourage the type of peer review that would expose incompetent physicians, the HCQIA shields health care entities and individual physicians from liability for damages for actions performed in the course of monitoring the competence of health care personnel.” Singh, 308 F.3d at 31 (additional citations omitted). Any decision made in the August 19 meeting was made while “monitoring the compe-fence of [Wojewski].” It follows that the decisions of the meeting should be immune from liability. Any other decision frustrates the congressional intent behind the HCQIA.

[¶ 28.] Even if we were to agree with Wojewski that the group does not meet the definition of “committee” conducting professional review activities, the physicians would still be immune from liability. As previously noted, immunity is granted to “any person who participates with or assists the [professional review body] with respect to the [professional review action]....” 42 U.S.C.A. § 11111(a)(1); Fobbs v. Holy Cross Health System Corp., 789 F.Supp. 1054, 1062 (E.D.Cal.1992). These physicians were reviewing the surgical capabilities of Wojewski in order to determine if he should keep his surgical privileges. The “professional review action” in this case was to revoke Wojewski’s surgical privileges and the meeting “assist[ed] the body with respect to the action.” As the circuit court noted, the professional review activities are not limited to the first day that the fair hearing panel began its work, but are “interpreted broadly enough to focus on the evaluation and the preliminary investigation of whether a physician’s privileges should be changed or modified or suspended.”

[¶ 29.] Finally, Wojewski argues, for the first time on appeal, that the meeting actions are not immune because the statutory standards in 42 U.S.C.A. section 11112(a) were not met. Before a hospital’s professional review action falls within the HCQIA’s grant of immunity, four standards must be met. These standards require:

[A] professional review action must be taken—
(1) in the reasonable belief that the action was in the furtherance of quality health care,
(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 and after meeting the requirement of paragraph (3).

42 U.S.C.A. § 11112(a). There is a presumption that the professional review action has met the statutory standards, “unless the presumption is rebutted by a preponderance of the evidence.” Id.

[¶ 30.] Wojewski concedes the professional review action after the surgery incident meets the standards. The August 19 morning meeting is a part of the professional review action. The individual parts of the professional review action do not need to meet the standards, just the professional review action as a whole. As the court noted in Fobbs, “[t]he HCQIA does not require that a professional review body’s entire course of investigative conduct meet particular standards in order for it to be immune from liability for its ultimate decision.” 789 F.Supp. at 1065. Therefore, only the professional review action (revocation of privileges) must meet the standard. Wojewski concedes the revocation of his privileges meets the standard, therefore his argument fails.

[¶ 31.] Finally, Wojewski spends much of his brief arguing the individual doctors knew or should have known Wojewski was suffering from a manic episode. He also finds fault with the individual doctors’ actions or inaction in deciding he could still perform surgery. However, neither Wo-jewski nor his wife informed the hospital of his relapse. In any event, whether the hospital knew or should have known or Wojewski should have informed the hospital is of no consequence. The discussion and the decision made during the August 19 morning meeting is immune, regardless of who knew or should have known of his manic state.

[¶ 32.] Any other interpretation than today’s decision would frustrate'the congressional intent behind the HCQIA. It was designed to facilitate peer review of potentially incompetent doctors in order to improve health care and protect patients. Taking Wojewski’s argument to its logical consequence, no doctors would ever meet to discuss whether they should stop a surgeon from conducting surgery because they would be liable for their discussion and any subsequent decision. Wojew-ski’s claim is merely a backdoor attempt at recovering damages from the revocation of his license when he knows he cannot recover from that decision. However, the August 19 meeting assisted the professional review body in its professional review action and is encompassed in the decision. This is so even though the group was informal, rather than formal, which may be the preferred procedure to avoid litigation. The persons involved in the meeting and the decision of the August 19 meeting are immune from damages liability. Therefore, it is not necessary to reach the state law claims.

[¶ 83.] Affirmed.

[¶ 34.] GILBERTSON, Chief Justice, and KONENKAMP and ZINTER, Justices, concur.

[¶ 35.] MEIERHENRY, Justice, concurs specially.

MEIERHENRY, Justice

(concurring specially).

[¶ 36.] I concur and write to clarify the term “clinical privileges” as defined in the Health Care Quality Improvement Act (HCQIA). Pursuant to the HCQIA, Congress has granted immunity to participants engaged in professional review actions. Sugarbaker v. SSM Health Care, 190 F.3d 905, 911 (8th Cir.1999). Whether an action is a “professional review action” necessarily requires the action to adversely affect “clinical privileges.” Mathews v. Lancaster General Hospital, 87 F.3d 624, 633 (3d Cir.1996). “Professional review action” is defined as:

An action or recommendation of a professional review body which is taken or made in the conduct of professional review activity, which is based on the competence or professional conduct of an individual physician ... and which affects (or may affect) adversely the clinical privileges, or membership in a professional society, of the physician.

42 U.S.C.A. § 11151(9) (emphasis added). “The definition of ‘professional review action’ encompasses decisions or recommendations by peer review bodies that directly curtail a physician’s clinical privileges or impose some lesser sanction that may eventually affect a physician’s privileges.” Mathews, 87 F.3d at 634. “Clinical privileges” is specifically defined by 42 U.S.C.A. § 11151(3) as follows:

The term “clinical privileges” includes privileges, membership on the medical staff, and the other circumstances pertaining to the furnishing of medical care under which a physician or other licensed health care practitioner is permitted to furnish such care by a health care entity.

[IT 37.] On the morning of August 19, 2003, an informal group of doctors met to determine if Wojewski was able to perform a surgery he had scheduled. The majority concludes that the doctors who informally met that morning were immune from liability because they were engaged in professional review activities related to ... revoking Wojewski’s surgical privileges. See supra, ¶24. This conclusion overstates what actually occurred. The doctors only met to decide whether Wojewski was capable of doing surgery that morning. The doctors decided he was and took no further action. It was not until after the Fair Hearing Panel conducted a hearing that Wojewski’s clinical privileges were directly curtailed. The doctors’ informal meeting conforms to the definition of investigatory action to assist the review process, thus still protected by HCQIA. Austin v. McNamara, 979 F.2d 728, 736-38 (9th Cir.1992) (holding that the actual decision to suspend privileges and the investigatory process leading up to that decision were immune under HCQIA); 42 U.S.C.A. § 11151(10) (defining professional review activity). Although the outcome of this case does not rest on the definition of “clinical privileges,” we must be mindful of the breadth we give this term for future claims brought under HCQIA.

      . Wojewski died in an automobile-pedestrian accident several months after initiating the suit. On November 8, 2005, his estate was substituted as a party.

      . Wojewski sued in federal district court seeking relief under Title I of the Americans with Disabilities Act (ADA), Title III of the ADA, the Rehabilitation Act, and six state law claims. Wojewski v. Rapid City Reg'l Hosp., 394 F.Supp.2d 1134 (D.S.D.2005). The district court granted summary judgment in favor of the defendants on the Title I and Rehabilitation Act claims because Wojewski was not an employee of the hospital. Id. at 1140. The Title III claim was dismissed since Wo-jewski was not a “client or customer” of the hospital. Id. at 1145. The district court declined to exercise jurisdiction over the state law claims. Id. The Court of Appeals for the Eighth Circuit affirmed the dismissal of the Title I and Rehabilitation Act claims. Wojewski v. Rapid City Reg’l Hosp., 450 F.3d 338, 340 (8th Cir.2006). It also ordered the Title III claim dismissed as moot since Wojewski had died while the appeal was pending. Id. at 342. He then brought the state law actions in state circuit court. Wojewski v. Rapid City Reg’l Hosp., No. 05-650 (Pennington County Nov 15, 2005). That action is the subject of this appeal.

      .The Defendants are Rapid City Regional Hospital., Dr. Charles Hart, and Dr. Robert Glenn Allen, Jr. They will be referred to collectively as RCRH, unless further identification is necessary.

      . Dr. Oury saw Wojewski perform surgery the previous day and observed him that morning. Dr. Hart met with Wojewski after the meeting, but prior to the surgery, and thought he was rational.

      . The statute grants immunity to the following individuals: "(A) the professional review body, (B) any person acting as a member or staff to the body, (C) any person under a contract or other formal agreement with the body, and (D) any person who participates with or assists the body with respect to the action ....” 42 U.S.C.A. § 11111 (a)(1)(A)-(D).

      . Officers are agents of corporations and act on their behalf. Z. Jill Barclift, Senior Corporate Officers and the Duty of Candor: Do the CEO and CFO Have a Duty to Inform?, 41 Val. U. L. Rev. 269, 276 (citing Lyman P.Q. Johnson & David Millon, Recalling Why Corporate Officers are Fiduciaries, 46 Wm. & Mary L. Rev. 1597, 1617 (2004)).

      . This also discounts the fact Wojewski signed a letter of agreement/conditions of reappointment, which made his work subject to pre-screening, supervision by Dr. Oury and review. At oral argument, he conceded this letter was peer review and affects his privileges.

      . At oral argument, Wojewski modified his argument slightly to allege the doctors should not have stopped the surgery, but instead should have called Dr. Frost and reported to him. Then the peer review would have started and the peer review committee could determine whether the surgery could have continued. This argument was made in the breach of contract section, alleging a failure to follow the Impair Physician Statement, but not made in the HCQIA argument. In the HCQIA argument, Wojewski specifically states, "Defendants fail[ed] to prevent an obviously sick man from performing heart surgery — when they clearly had the power and mechanisms at their avail to do so....” Brief for Appellant at 14-15, Wojewski, 2007 SD 33 (2007). In any event, whether the doctors followed the Impaired Physician Policy Statement is immaterial as the statute specifically defines when immunity applies and does not contemplate the effect of other Hospital procedures.

      . In so deciding, the court illustrated the problem with applying the standards to initial acts required to complete the final professional review action:
      [I]t would be impossible to apply the § 11112(a) standard to acts which are encompassed within the standard. For example, the standard requires that reasonable efforts be made to obtain the facts of the matter, the facts of the matter meaning those upon which the professional review action was based. These facts will be called facts "Y". Plaintiff would apparently require that the whole § 11112(a) standard apply to the process of gathering facts “Y”. In other words, before a fact "Y” investigation is undertaken plaintiff would require that a reasonable effort be made to obtain the facts supporting the act of initiating a fact "Y” investigation, in addition to adequate notice and hearing regarding the fact "Y” investigation. This is nonsensical. The standard is intended to apply to discrete decisions, not to an ongoing course of conduct.

        Fobbs, 789 F.Supp. at 1065.

      . According to the Fair Hearing Panel Recommendation, Wojewski's wife knew that he was suffering from a relapse and she did not tell the hospital in order to preserve his reputation.

      . This opinion states "any decision” because if we agreed with Wojewski’s argument, then he could have sued had the doctors prevented him from conducting surgery, and the fair hearing panel revoked his privileges, even though this is exactly what he argues in his brief that they should have done.

      . While the term "clinical privileges" as used in 42 U.S.C.A. 11151(3) has not been interpreted by courts, cases analyzing whether an action by a health care entity constitutes a "professional review action” generally involve the revocation of all clinical privileges for a certain period of time rather than a decision to prevent a medical professional from performing one isolated act or duty. See Gordon v. Lewistown Hospital, 423 F.3d 184 (3d Cir.2005) (reviewing suspension of ophthalmologist's medical-dental staff privileges); Gabaldoni v. Washington County Hospital Association, 250 F.3d 255 (4th Cir.2001) (reviewing termination of obstetrician whose clinical privileges were terminated); Mathews, 87 F.3d 624 (stating that no professional review action occurred until the board voted to suspend doctor’s privileges) citing Austin, 979 F.2d 728 (determining that "action” had not been taken until a professional review body limited his clinical privileges).


source: Caselaw Access Project

author: GILBERTSON, Chief Justice.

license: Public Domain

text:
    2007 SD 31
    SPISKA ENGINEERING, INC., Plaintiff and Appellee, v. SPM THERMO-SHIELD, INC., Defendant and Appellant.
    No. 24229.
    Supreme Court of South Dakota.
    Argued Feb. 14, 2007.
    Decided March 28, 2007.

      Michael C. Loos, Courtney R. Clayborne of Clayborne & Loos, P.C., Rapid City, South Dakota, Attorneys for plaintiff and appellee.
    Jonathan M. Oostra, James S. Nelson of Gunderson, Palmer, Goodsell & Nelson, Rapid City, South Dakota, Attorneys for defendant and appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] SPM Thermo-Shield, Inc. appeals a judgment of the circuit court affirming the decision of an arbitrator and denying a motion to vacate the arbitration award. We affirm.

FACTS AND PROCEDURE

[¶ 2.] On August 3, 1994, Thermo-Shield entered into an Agreement with Spiska Engineering, Inc. Under this Agreement, Spiska was designated as the exclusive distributor of Thermo-Shield products in several European countries. Subsequent addendums and supplements to the Agreement granted Spiska additional territories and the right to mix raw Thermo-Shield material instead of buying the pre-mixed product. Beginning in September 2000, Thermo-Shield attempted to amend the Agreement to include a price increase and relinquishment of Spiska’s mixing rights. Spiska rejected the proposed amendments. Soon thereafter, Thermo-Shield notified Spiska that its contracts and rights with Thermo-Shield were terminated.

[¶ 3.] There are several provisions of the Agreement relevant to this appeal. They include:

8. This Agreement shall continue in force and govern all transactions and relations between the parties hereto until canceled or terminated. Either party may cancel or terminate this Agreement at any time upon a material breach by the other party (including but not limited to illegal activities, misrepresentation of products or warranty, etc.)[.]
10. On termination of this Agreement, neither Company nor Distributor shall be liable to each other for compensation, reimbursement, or damages (1) either on account or present or prospective profits on sales or anticipated sales, (2) on account of expenditures, investments, or commitments made in connection herewith or in connection with the establishment, development, or maintenance of the business or goodwill of Company or Distributor, or (3) on account of any other cause whatsoever. The termination shall not affect the rights or liabilities of the parties with respect to goods previously sold under this Agreement, or with respect to any indebtedness then owing by either party to the other.
30. In the event of any dispute between the parties[,] such dispute will be arbitrated according to the AAA rules, and the prevailing party shall be entitled to recover from the other party all costs related to the action, including reasonable attorney’s fees.

[¶4.] Spiska requested arbitration per the Agreement, claiming wrongful termination by Thermo-Shield. The initial arbitrator decided in favor of Thermo-Shield, and the circuit court affirmed that decision. Spiska appealed to this Court. We remanded for the circuit court to reconsider its decision concerning whether the arbitration award was procured by undue means in light of newly discovered documents. Spiska Engineering, Inc. v. SPM Thermo-Shield, Inc., 2004 SD 44, ¶ 16, 678 N.W.2d 804, 809. On remand, the circuit court vacated the initial arbitration award and ordered a new arbitration.

[¶ 5.] A second arbitration hearing was conducted with both parties present. After “review[ing] all the evidence presented, including the specific wording of the various contracts between the parties, and having had the opportunity to observe the witnesses and determine their credibility,” the second arbitrator concluded that “SPM Thermo-Shield, Inc. wrongfully terminated certain contracts between it and Spiska Engineering, Inc., and Spiska is entitled to damages, costs, fees, and interest” in the amount of $4,999,257. The award included damages for past expenditures, the sale of the license agreement, illegal sales in Spis-ka’s territories, lost profits, attorneys’ fees and costs and lost profits for projected sales. The arbitrator’s decision did not include any reasoning for its interpretation of the Agreement to allow damages.

[¶ 6.] Thermo-Shield filed an application to the circuit court requesting an order vacating the arbitrator’s award of damages, and Spiska sought confirmation of the award. The circuit court issued a memorandum decision confirming the arbitrator’s award. In that decision, the court concluded that the arbitrator “was not constrained by the limitation of damages clause in paragraph ten of the contract. Martin [the arbitrator] determined Ther-mo-Shield’s wrongful termination of the contract was not a material breach which was contemplated by the parties in paragraph eight. Therefore, the limitations on damages in paragraph ten are inapplicable.” The court also found that it was clear the arbitrator “ ‘construed or applied’ the contract when developing his binding decision.”

[¶ 7.] The court also filed findings of fact and conclusions of law. The court concluded that “the arbitrator did not exceed his authority,” for the “decision [was] justified and supported by the agreements.” The court reasoned:

In arriving at his decision the arbitrator reviewed the entire original contract including paragraphs 8 and 10 which dealt with termination of the contract and so-called limitations of damages, respectively. Paragraph 8 of the contract allows the contract to be terminated only where there is a material breach, which is defined to include “... illegal activities, misrepresentations of products or warranty, etc.” Certainly, the finding by the arbitrator that the contract was wrongfully terminated was within his authority to decide all disputes arising out of the agreement. Because the arbitrator found the contract was wrongfully terminated by Thermo-Shield, he was not constrained by the limitation of damages found in paragraph 10 of the contract.

“Applying an ‘extraordinary level of deference’ to Arbitrator Martin’s decision,” the court upheld and confirmed the award.

[¶ 8.] Thermo-Shield appeals, raising one issue:

Whether the circuit court erred in affirming the arbitration award.

STANDARD OF REVIEW

[¶ 9.] We have recently stated the standard of review of a court order affirming an arbitrator’s award as such:

Judicial review of arbitration awards is narrow as provided by SDCL 21-25A-24. In reviewing a trial court’s order “confirming the arbitrator’s award, we accept the court’s factual findings unless clearly erroneous, but decide questions of law de novo.” The party asserting error has the burden of proof.

Spiska Engineering, Inc., 2004 SD 44, ¶ 4, 678 N.W.2d at 805 (quotation omitted).

ANALYSIS AND DECISION

[¶ 10.] Thermo-Shield claims the arbitration award in favor of Spiska should be vacated pursuant to SDCL 21-25A-24(3), because the arbitrator exceeded his powers in awarding monetary damages. Ther-mo-Shield argues that the Agreement clearly and unambiguously limits damages in the event of termination by either party. Thus, it submits that the arbitrator’s award of damages violated the Agreement between the parties and was an act beyond the powers of the arbitrator. Spiska claims the Agreement is amenable to the arbitrator’s interpretation allowing an award of damages in the case of a wrongful termination, thus the arbitrator did not exceed his powers in interpreting the Agreement in such a manner and subsequently awarding damages.

[¶ 11.] SDCL 21-25A-24 lists grounds available for vacation of an arbitrator’s award. “ ‘Unless one of the statutory subsections to vacate or modify an award is applicable, arbitration awards are presumptively correct.’ ” Azcon Const. Co., Inc. v. Golden Hills Resort, Inc., 498 N.W.2d 630, 635 (S.D.1993) (quoting Western Cas. & Sur. Co. v. Gridley, 362 N.W.2d 100, 102 (S.D.1985)). The subsection relevant to this appeal provides: “Upon application of a party, the court shall vacate an award where: ... (3) The arbitrators exceeded their powers.” SDCL 21-25A-24(3).

[¶ 12.] “Whether an arbitrator acted within the scope of his authority, or, conversely, exceeded his powers, is a question of law, reviewed de novo, the resolution of which depends on the intention of the parties. The intention of the parties is determined by reference to the agreement or submission.” Double Diamond Const. v. Farmers Co-op. Elevator Ass’n of Beresford, 2004 SD 65, ¶10, 680 N.W.2d 658, 660 (citations omitted). “In deciding whether an arbitrator has exceeded his power, the court need only examine the submission and the award to determine whether the award conforms to the submission.” Id. at 660-61 (citation omitted). Further, “the arbitrators’ powers are derived from the arbitration agreement; therefore, the arbitration award must conform to, and comply with, the arbitration agreement.” Aamot v. Eneboe, 352 N.W.2d 647, 649 (S.D.1984) (citations omitted).

[¶ 13.] Moreover, “ ‘we must confirm the award even if we are convinced that the arbitrator committed serious error, so long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority.’” Vold, 2005 SD 80, ¶ 10, 699 N.W.2d at 486 (quotation omitted). And, once again, “ “when a party claims that the arbitrators have exceeded their authority, the claimant bears the burden of proving this contention, and every reasonable presumption in favor of the award will be made.’ ” Azcon Const. Co., Inc., 498 N.W.2d at 635 (quotation omitted).

[¶ 14.] This Court has held an arbitrator exceeded his powers on three occasions. Aamot, 352 N.W.2d at 649-50; Double Diamond Const., 2004 SD 65, ¶ 12, 680 N.W.2d at 661; Vold, 2005 SD 80, ¶ 21, 699 N.W.2d at 488. In Aamot, we held the equitable division provided by the arbitrators was not within the scope of the agreed-upon issues for arbitration, therefore the arbitrators exceeded their powers. 352 N.W.2d at 649-50. Likewise, in Double Diamond Const., we concluded that the arbitrator failed to decide the issue submitted, thus exceeding his authority under SDCL 21-25A-24(S). 2004 SD 65, ¶ 12, 680 N.W.2d at 661. Applying the Federal Arbitration Act (FAA) in Void, we held the arbitrator exceeded his power by issuing an unreasoned award after he agreed to order a reasoned award. 2005 SD 80, ¶ 21, 699 N.W.2d at 488.

[¶ 15.] These cases are only partially instructive; however, for there is no dispute in this case that the arbitrator had the authority to interpret the contract and exercised that authority accordingly. Instead, Thermo-Shield claims the arbitrator exceeded his powers by failing to apply the plain meaning or terms of the contract.

[¶ 16.] Federal courts have more specifically addressed this issue. For instance, the Eighth Circuit Court of Appeals (Eighth Circuit) has held that if an arbitrator disregards the plain language of the agreement, he acts without authority, and the award must be vacated. Northwest Airlines, Inc. v. Int’l Ass’n of Machinists & Aerospace Workers, Air Transport Dist. Lodge No. 143, 894 F.2d 998, 1000 (8th Cir.1990). “ ‘Although the arbitrator may interpret ambiguous language, the arbitrator may not disregard or modify unambiguous contract provisions.’ ” Id. (quotation omitted). The United States Supreme Court has also stated, “[t]he arbitrator may not ignore the plain language of the contract; but the parties having authorized the arbitrator to give meaning to the language of the agreement, a court should not reject an award on the ground that the arbitrator misread the contract.” United Paperworkers Int’l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 371, 98 L.Ed.2d 286 (1987) (citation omitted).

[¶ 17.] The Eighth Circuit has also stated that “[a] court ‘cannot interfere with the arbitrator’s award unless it can be said with positive assurance that the contract is not susceptible of the arbitrator’s interpretation.’ ” United Food and Commercial Workers, AFL-CIO, CLC, Local No. 88 v. Shop ‘N Save Warehouse Foods, Inc., 113 F.3d 893, 895 (8th Cir. 1997) (quotations omitted). Also, a court “may not vacate the award simply because [it] disagreed] with [the arbitrator’s] interpretation, unless that interpretation so directly contradicts the plain meaning of the parties’ agreement that it effectively rewrites it.” Boise Cascade Corp. v. Paper Allied-Indus., Chem. and Energy Workers (PACE), Local 7-0159, 309 F.3d 1075,1081 (8th Cir.2002). Furthermore, “[t]he plain text must be stretched to reach the arbitrator’s interpretation, but not beyond its breaking point.” Id. n. 5.

[¶ 18.] In this case, Thermo-Shield does not challenge the arbitrator’s power to interpret the terms of the Agreement between the parties, nor does it argue that the arbitrator simply misinterpreted the terms of the Agreement. Thermo-Shield concedes that if the disputed contractual provisions (paragraphs eight and ten) are susceptible to the arbitrator’s and circuit court’s interpretation, the award is not subject to judicial review and must be affirmed. Therefore, the issue before this Court is reduced to whether the Agreement’s terms are susceptible to the arbitrator’s interpretation. If so, we must afr firm the award. On the other hand, if. the Agreement’s plain terms are susceptible to only one interpretation — that only limited damages are allowed upon termination, wrongful or otherwise — then the arbitrator exceeded his powers by awarding damages, and we must reverse.

[¶ 19.] “Whether the language of a contract is ambiguous is a question of law.” Bunkers v. Jacobson, 2002 SD 135, ¶ 15, 653 N.W.2d 732, 738 (citation omitted). We have determined that “ ‘[a] contract is ambiguous when application of rules of interpretation leave a genuine uncertainty as to which of two or more meanings is correct.’ ” Pesicka v. Pesicka, 2000 SD 137, ¶ 8, 618 N.W.2d 725, 727 (quotation omitted). Further, “ ‘a contract is ambiguous only when it is capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement.’ ” Divich v. Divich, 2002 SD 24, ¶ 10, 640 N.W.2d 758, 761 (quotation omitted).

[¶20.] In paragraph ten, the Agreement provides for a limitation of damages “[o]n termination of this Agreement.” There are no qualifying or limiting words, such as wrongful, for cause, lawful, permitted by this Agreement, such, etc. modifying the word termination. Therefore, this paragraph, standing alone, unambiguously provides for a limitation of damages upon any termination, wrongful or otherwise.

[¶ 21.] However, “[conventional principles of contract interpretation require agreements to be construed in their entirety giving contextual meaning to each term.” Bunkers, 2002 SD 135, ¶ 15, 653 N.W.2d at 738. Also, “[w]hen provisions conflict, ... ‘the more specific clauses are deemed to reflect the parties’ intentions — a specific provision controls a general one.’ ” Id. (quotation omitted).

[¶ 22.] In order to give contextual meaning to the word “termination,” we must review the paragraph preceding the limitations of damages paragraph that also uses the word “termination.” In paragraph eight, the Agreement provides that it governs until terminated. Then, in the same paragraph, it sets forth when a termination is allowed by the parties. It provides, “[e]ither party may cancel or terminate this Agreement at any time upon a material breach by the other party.”

[¶23.] According to the circuit court, the arbitrator assumed “termination,” as used in paragraph ten, referred to the termination allowed for in the preceding paragraph eight. Thus, the arbitrator concluded that only a termination upon a material breach by the other party would cause this limitation of damages paragraph to apply. Because Thermo-Shield wrongfully terminated the Agreement in this instance, the arbitrator concluded that the limitation of damages paragraph did not apply.

[¶ 24.] Thermo-Shield argues that this interpretation renders paragraph ten meaningless. And, “[a]n interpretation which gives a reasonable and effective meaning to all the terms is preferred to an interpretation which leaves a part unreasonable or of no effect.” Nelson v. Schellpfeffer, 2003 SD 7, ¶ 14, 656 N.W.2d 740, 744 (citation omitted). Thermo-Shield points out that the circuit court’s interpretation allows the damage limitation provision to apply only if the contractual relationship is terminated according to the terms of the Agreement as provided by paragraph eight. However, Thermo-Shield argues that when the Agreement is terminated according to its terms (under paragraph eight), there would be no damages to limit, for there would be no breach.

[¶ 25.] A Pennsylvania court interpreting a distributorship agreement and facing a similar argument that a limitation of damages clause did not apply in the case of a wrongful termination stated:

I reject plaintiffs first argument that the clause does not apply in the case of a breach of the agreement because that would render it meaningless. The plain language of the clause states in the event the parties’ relationship ceases neither side will be entitled to lost profits. The plaintiff argues that the clause was intended only to make lost profits unavailable when the contract is terminated according to its terms. What the plaintiffs interpretation overlooks is that if the contract were terminated according to its terms, there would be no breach of contract. If there is no breach, there is no right to recover and if there is no right to recover, there is no exposure to limit. Plaintiffs interpretation reads the clause as simply stating the obvious, that is, if there is no breach, then there is no recovery. This defies common sense as well as the rules of contract interpretation. See 4 S. Willi-ston, Contracts § 601, at 310 (3d ed. W. Jaeger 1961) (contracts should be construed so that no terms are rendered meaningless).

Stanley A. Klopp, Inc. v. John Deere Co., 510 F.Supp. 807, 812 (ED.Pa.1981). However, the contract in Klopp stated, “if such appointment is canceled for any reason, neither party shall be entitled to any compensation or reimbursement for loss of prospective profits, anticipated sales or other losses occasioned by the termination of the relationship.” Id. at 808 (emphasis added).

[¶ 26.] Even though we may believe the arbitrator’s and circuit court’s interpretation is a misinterpretation of the Agreement, we cannot say with positive assurance that the Agreement is not susceptible of the arbitrator’s interpretation. Reading paragraph ten in context with paragraph eight, we cannot say the word “termination” is unambiguous, subject only to an interpretation that the limitations provision applies to any termination, including a wrongful termination.

[¶ 27.] Furthermore, the arbitrator’s and circuit court’s interpretation that the termination referenced in paragraph ten referred to the termination allowed in paragraph eight is not an interpretation that so directly contradicts the plain meaning of the parties’ agreement that it effectively rewrites it. After all, according to principles of contract interpretation, words are to be given their contextual meaning, and a specific clause or provision controls over a more general one. Bunkers, 2002 SD 135, ¶ 15, 653 N.W.2d at 738. In paragraph eight, termination is described in more detail than in paragraph ten. It specifically allows for termination by one party upon a material breach by the other party. Given the existence of this specific provision concerning termination, paragraph ten is not incapable of the arbitrator’s and circuit court’s interpretation that termination, standing alone, meant termination based upon a material breach of the other party described in the preceding paragraph.

[¶ 28.] Also, the arbitrator’s and circuit court’s interpretation that the Agreement prohibits damages only when it is terminated upon a material breach does not fail to give meaning to every provision in the Agreement. Thermo-Shield claims that there would be no damages to limit if the termination referred to in paragraph ten encompassed only the termination discussed in paragraph eight. However, damages could still exist in the event of termination provided for in paragraph eight. Paragraph eight allows a party to terminate the Agreement when the other party has materially breached the Agreement. In such a case, the party terminating the agreement would also have a legal right to obtain damages from the breaching party. However, according to the arbitrator’s and circuit court’s interpretation, paragraph ten would limit damages in that instance. Thus, paragraph ten would not be rendered meaningless by the arbitrator’s interpretation. Furthermore, the Klopp court’s reasoning supporting this argument is distinguishable, for that contract provided for termination for any reason. This contract did not contain such language.

[¶ 29.] Moreover, as this Court noted in Western Cas. & Sur. Co., “one of the objects of arbitration is the finality of decisions.” 362 N.W.2d at 102. “The purpose of arbitration is to settle controversy and avoid litigation.” Id. (citation omitted). “Because the parties have contracted to have disputes settled by an arbitrator chosen by them rather than by a judge, it is the arbitrator’s view of the facts and of the meaning of the contract that they have agreed to accept.” United Paperworkers Int’l Union, AFL-CIO, 484 U.S. at 37-38, 108 S.Ct. at 370, 98 L.Ed.2d 286.

[¶30.] Therefore, the merits of an arbitration decision are insulated from final review by a court. Otherwise, the purpose of arbitration is “defeated if the losing party after arbitration had ready access to the court as though no arbitration existed.” Western Cas. & Sur. Co., 362 N.W.2d at 102 (citations omitted). Also, “[cjourts [ ] do not sit to hear claims of factual or legal error by an arbitrator as an appellate court does in reviewing decisions of lower courts.” United Paper-workers Int’l Union, AFL-CIO, 484 U.S. at 38, 108 S.Ct. at 370, 98 L.Ed.2d 286.

[¶ 31.] Under our limited review of an arbitrator’s decision, Thermo-Shield had the burden of establishing that the Agreement was plain, unambiguous and not susceptible to the arbitrator’s and circuit court’s interpretation. This standard effectively requires Thermo-Shield to establish that the arbitrator’s and circuit court’s interpretation was irrational. This burden was not met. For the foregoing reasons, we affirm the judgment of the circuit court and order that the arbitrator’s award be enforced.

[¶ 32.] Affirmed.

[¶ 33.] KONENKAMP, ZINTER, and MEIERHENRY, Justices, and WILBUR, Circuit Judge, concur.

[¶ 34.] WILBUR, Circuit Judge, sitting for SABERS, Justice, disqualified.

      . Under the AAA, arbitrators are under no obligation to set out the reasons for their awards unless a reasoned award is agreed to between the parties before selection of an arbitrator, or after selection when the arbitrator consents to give a reasoned award. Vold v. Broin & Associates, Inc., 2005 SD 80, ¶ 20, 699 N.W.2d 482, 488.

      . An arbitration award may be set aside under the FAA when "the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.” 9 U.S.C. § 10(a)(4) (2002).


author: LARSON, Justice.

text:
    STATE of Iowa, Appellant, v. Aaron Beuford STOHR, Appellee.
    No. 05-1107.
    Supreme Court of Iowa.
    April 27, 2007.
    As Amended on Denial of Rehearing June 5, 2007.
    Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, and Karen R. Kaufman Salic, County Attorney, for appellant.
    Richard A. Bartolomei of Bartolomei & Lange, P.L.C., Des Moines, for appellee.
   LARSON, Justice.

Aaron Stohr was arrested and prosecuted for OWI as a third or subsequent offender under Iowa Code section 321J.2(c) (2003). Stohr filed a motion to suppress a breath test that had been administered using a DataMaster cdm device (hereinafter referred to as DataMaster), and the district court sustained the motion. We granted the State’s application for discretionary review. The court of appeals reversed the ruling, and because this testing device is in widespread use in Iowa, we granted further review to provide guidance to the bench and bar. We affirm the decision of the court of appeals, reverse the judgment of the district court, and remand for further proceedings.

I.Facts and Prior Proceedings.

On July 2, 2004, a state trooper stopped a vehicle driven by Aaron Stohr and detected an odor of alcohol. The officer observed a twelve-pack of beer behind Stohr’s driver’s seat and noticed that Stohr’s eyes were bloodshot and watery. Stohr failed field sobriety tests, and two preliminary breath tests resulted in breath alcohol levels of .161 and .154. The trooper transported Stohr to the sheriffs office and administered a breath test on the Da-taMaster device. The result of Stohr’s DataMaster breath test was .114, well over the legal limit of .08. Stohr filed several motions, including a motion to suppress on the ground the DataMaster test was not reliable and accurate. The district court heard arguments on this motion and, by agreement of the parties, admitted into the record the testimony of James Bleskacek, a criminalist with the Iowa Division of Criminal Investigation Criminalistics Laboratory (DCI), that had been given at a hearing in another case, State v. Koester. Koester was tried in another county, was appealed on the same issue as is before the court in the present case, and was affirmed by the court of appeals in an unpublished opinion. 710 N.W.2d 257 (Iowa Ct.App. 2005).

The district court in the present case concluded that the trooper who administered the breath test did so in accordance with his training and all applicable regulations and statutes. Further, the court concluded that the DCI criminalist performed his prescribed duties in accordance with the regulations governing certification and recertification of the DataMaster. Nevertheless, the district court concluded that the scientific reliability standard of Leaf v. Goodyear Tire & Rubber Co., 590 N.W.2d 525 (Iowa 1999), was not met with respect to the operation of the DataMas-ter. This conclusion was based on what the court perceived to be uncertain internal standard and calibration methods, as well as the variable nature of the breath sample blown into the machine by Stohr. The district court concluded that the test results were, therefore, too unreliable to be admitted and sustained the motion to suppress. The court of appeals disagreed with this analysis, and so do we.

II. Standard of Review.

The parties disagree about the proper standard of our review. Stohr contends that the court of appeals erred in reviewing the district court’s ruling for correction of errors at law. Instead of characterizing the issue as one of statutory interpretation, Stohr contends the issue involves an evidentiary ruling and, as such, should be reviewed for abuse of discretion.

Contrary to Stohr’s argument, our cases clearly have held that review in such cases is not for abuse of discretion, but for correction of errors at law. See, e.g., State v. Hornik, 672 N.W.2d 836, 838 (Iowa 2003) (review for correction of errors at law when the result turns on the construction of Iowa Code section 321J.11); State v. Long, 628 N.W.2d 440, 447 (Iowa 2001) (review of ruling on hearsay objection for correction of errors at law, not for abuse of discretion); State v. Stoneking, 379 N.W.2d 352, 354 (Iowa 1985) (review for correction of errors at law when “ ‘the operative facts and inferences are not controverted,’ and the result will turn on the construction of [a statute].” (quoting State v. Davis, 271 N.W.2d 693, 695 (Iowa 1978))); compare State v. Hershey, 348 N.W.2d 1, 2 (Iowa 1984) (“Foundational questions are to be determined by the court. Our review is for abuse of discretion.” (Citation omitted.)).

III. Discussion.

Admissibility of Stohr’s breath-test results is expressly established by statute. Iowa Code section 321J.15 provides:

Upon the trial of a civil or criminal action or proceeding arising out of acts alleged to have been committed by a person while operating a motor vehicle in violation of section 321J.2 or 321J.2A, evidence of the alcohol concentration ... at the time of the act alleged as shown by a chemical analysis of the person’s blood, breath, or urine is admissible. If it is established at trial that an analysis of a breath specimen was performed by a certified operator using a device intended to determine alcohol concentration and methods approved by the commissioner of public safety, no further foundation is necessary for introduction of the evidence.

(Emphasis added.)

Under section 321J.15, the State must establish three elements: (1) the test was performed on a device intended to determine alcohol concentration, (2) the test was performed by an operator certified to use the device, and (3) the methods used to perform the test were approved by the Commissioner of Public Safety. All three requirements were met in this case. First, the DataMaster is a device intended to determine alcohol concentration and has been approved by the commissioner. See Hornik, 672 N.W.2d at 841-42; see also Iowa Admin. Code r. 661-7.2(1). Stohr apparently concedes this point. Second, the operator must be certified to use the DataMaster device. The certificate indicating that the operator in this case was qualified to use the device was placed in evidence and, although Stohr does not concede this point, we believe the operator’s qualifications were clearly established. Third, the methods used by the operator must have been approved by the commissioner. Homik, 672 N.W.2d at 841-42. It is undisputed that the operator conducted Stohr’s breath test in accordance with his training and the operational checklist provided by the DCI. The commissioner authorized the DCI to establish procedures for testing breath-alcohol concentration using the DataMaster device, and the DCI did so. See Iowa Admin. Code r. 661— 7.2(1). Further, the DataMaster used in this case had been certified to be in proper working order in accordance with the procedures issued by the DCI.

Despite the clear legislative procedure provided for use of such alcohol-sensing devices, and the express language of the statute that “no further foundation is necessary for introduction of the evidence,” Stohr argues, and the district court held, that our general rule for admission of scientific evidence must be superimposed on the statutory criteria of section 321J.15. In making this argument, Stohr relies on Leaf. This reliance is misplaced. The holding of Leaf, with respect to scientific evidence, may be summarized as (1) a rejection of the mandate that federal courts exercise a “gatekeeping” function under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), in favor of a more expansive approach to the admissibility of scientific evidence based on Iowa Rule of Evidence 702 and our cases applying it; and (2) a recognition of the district court’s broad discretion in weighing the reliability of proffered scientific evidence. Leaf, 590 N.W.2d at 532-33.

Contrary to Stohr’s argument and the ruling of the district court, nothing in Leaf suggests that its general rules for assessing admissibility of scientific evidence should control when a specific statutory process governs the admission of evidence. If a defendant such as Stohr chooses to attack the results of a breath test, the jury may consider his argument in assessing the weight to give to the test results. We agree with the court of appeals that the district court erred in suppressing Stohr’s breath-test results.

We affirm the decision of the court of appeals, reverse the judgment of. the district court, and remand for further proceedings.

DECISION OF COURT OF APPEALS AFFIRMED; JUDGMENT OF DISTRICT COURT REVERSED; CASE REMANDED.

All justices concur except HECHT, J., who takes no part.


author: HECHT, Justice.

text:
    STATE of Iowa, Plaintiff, v. IOWA DISTRICT COURT FOR JOHNSON COUNTY, Defendant.
    No. 06-0203.
    Supreme Court of Iowa.
    April 27, 2007.

      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, J. Patrick White, County Attorney, and Rachel Zimmermann and Iris Frost, Assistant County Attorneys, for plaintiff.
    Jerald W. Kinnamon and J. Dean Kee-gan, Cedar Rapids, for defendant.
   HECHT, Justice.

The State filed a petition for writ of certiorari alleging the district court exceeded its statutory authority in granting David Jensen a deferred judgment. We conclude Iowa Code section 321J.2(3)(a)(1) (2005) prohibits a deferred judgment under the circumstances of this case. We consequently sustain the writ, vacate the sentence, and remand for resentencing.

J. Background Facts.

On January 31, 2005, between approximately 9:00 p.m. and 9:50 p.m., David Jensen drank three double scotches at a bar in Solon, Iowa. At 10:03 p.m., the Johnson County Sheriffs Department received a call indicating a vehicle had been driving erratically and doing “donuts” on the road. Deputy Mark Prentice arrived at the location of the dispatch and found Jensen walking along the road, his car in a ditch. The deputy detected the odor of an alcoholic beverage on his breath, slurred speech, unsteady balance, and red, glassy eyes. The deputy administered three standardized field sobriety tests and a preliminary breath test, all of which indicated impairment.

Jensen was transported to the University of Iowa Department of Public Safety for additional testing. At 11:28 p.m., Jensen took a DataMaster breath test, which indicated a .170 alcohol concentration.

II. Background Proceedings.

The State charged Jensen with operating while intoxicated (OWI), in violation of Iowa Code section 321J.2(l)(u) (operating a motor vehicle while under the influence of alcohol) and section 321J.2(1)(6) (operating a motor vehicle while having an alcohol concentration of .08 or more). Jensen filed a written plea of guilty to the crime of operating a motor vehicle while under the influence, in violation of section 321J.2(l)(a). However, in his written plea, Jensen requested a deferred judgment, expressly denying the State’s allegation that he had driven with an alcohol concentration above .08. The State moved unsuccessfully to set aside the guilty plea because of Jensen’s denial of this allegation.

At Jensen’s sentencing hearing, the parties disputed Jensen’s eligibility for a deferred judgment. The State contended Jensen was ineligible pursuant to Iowa Code section 321J.2(3)(a)(l), which prohibits a court from granting a deferred judgment if “the defendant’s alcohol concentration established by the results of an analysis of a specimen of the defendant’s blood, breath, or urine withdrawn in accordance with this chapter exceeds .15.” According to the State, Jensen’s Data-Master test indicating a .17 alcohol concentration conclusively rendered him ineligible for a deferred judgment under this provision.

Jensen argued that, under the particular circumstances of his case, the test result did not render him ineligible for a deferred judgment. Experts for both the State and the defense testified at the sentencing hearing that Jensen would not have absorbed enough alcohol for his alcohol concentration to actually have exceeded .15 at the time he was driving. According to Jensen, this evidence rebutted a presumption contained in section 321J.2(8)(a):

The alcohol concentration established by the results of an analysis of a specimen of the defendant’s blood, breath, or urine withdrawn within two hours after the defendant was driving or in physical control of a motor vehicle is presumed to be the alcohol concentration at the time of driving or being in physical control of the motor vehicle.

The State responded that this evidentiary presumption is applicable only at trial, not at sentencing. The district court agreed with Jensen and granted a deferred judgment.

The State filed a petition for writ of certiorari to “challenge the authority of the district court to grant a deferred judgment in violation of Iowa Code section 321J.2(3)(a)” and “to resolve ... whether the two-hour evidentiary presumption in section 321J.2(8) applies to the district court’s determination [of] whether a defendant is eligible for a deferred judgment under section 321J.2(3)(a)(l).” We granted the petition and ordered further proceedings pursuant to the rules of appellate procedure. Iowa R.App. P. 6.303.

III. Scope of Review.

Because the State’s claim involves statutory interpretation, our review is for correction of errors at law. State v. Booth, 670 N.W.2d 209, 211 (Iowa 2003).

IV. Discussion.

This case presents a question of statutory interpretation: Whether section 321J.2(3)(a)(1) renders Jensen ineligible for a deferred judgment because his breath test indicated an alcohol concentration in excess of .15, in spite of evidence introduced at his sentencing hearing tending to prove his alcohol concentration at the time of driving did not exceed .15. The rules of statutory interpretation that guide our analysis are well settled. When a statute’s text is plain and its meaning clear, we do not “ ‘search for meaning beyond [the statute’s] express terms.’ ” State v. Knowles, 602 N.W.2d 800, 801 (Iowa 1999) (quoting State v. Chang, 587 N.W.2d 459, 461 (Iowa 1998)). The terms of a statute must be enforced as written. Brown v. Star Seeds, Inc., 614 N.W.2d 577, 579 (Iowa 2000).

Statutory text may express legislative intent by omission as well as inclusion. State v. Miller, 590 N.W.2d 45, 47 (Iowa 1999). The court “may not ... enlarge or -otherwise change the terms of a statute as the legislature adopted it.” Id. When a proposed interpretation of a statute would require the court to “read something into the law that is not apparent from the words chosen by the legislature,” the court will reject it. State v. Guzman-Juarez, 591 N.W.2d 1, 2 (Iowa 1999).

We conclude the text of section 321J.2(3)(a)(1) clearly indicates its application does not depend on proof that an alcohol concentration of .15 or above existed at the time of driving. The statute prohibits the granting of a deferred judgment when “the defendant’s alcohol concentration established by the results of an analysis of a specimen of the defendant’s blood, breath, or urine withdrawn in accordance with this chapter exceeds .15.” Jensen asks us to rewrite the statute to deny a deferred judgment to any defendant whose “alcohol concentration ... exceeded .15 at the time of driving.” We have no authority to do so. Guzman-Juarez, 591 N.W.2d at 2 (rejecting a defendant’s interpretation of section 321J.2(3)(a)(l) that would require “reading] something into the law that is not apparent from the words chosen by the legislature”).

We rejected a similar invitation to add words to section 321J.2(3)(a)(l) in State v. Rettinghaus, 591 N.W.2d 15, 16 (Iowa 1999). In that case, two defendants were found guilty of OWI, first offense, in violation of section 321J.2(1)(5). Rettinghaus, 591 N.W.2d at 16. The intoxilyzer measured their blood alcohol concentrations at .152 and .156. Id. At sentencing, the defendants asserted they were eligible for deferred judgments because when the in-toxilyzer’s margin of error was taken into account, their alcohol concentrations would have been reduced to .144 and .148, respectively. Id. The district court concluded the defendants were ineligible for deferred judgments under section 321J.2(3)(a)(1). Id. We held the district court appropriately sentenced them based on their alcohol concentration test results because they did not dispute the accuracy of the results. Id. at 17. We stated test results, not “some independent finding by the court concerning the defendant’s blood alcohol content,” trigger the section 321J.2(3)(a)(1) limitation on sentencing options. Id.

We find no merit in Jensen’s assertion that our interpretation of section 321J.2(3)(a)(1) must be driven by the section 321J.2(8)(a) presumption that the alcohol concentration contained in a specimen withdrawn within two hours after the defendant drove is presumed to be the concentration at the time of driving. The focus of section 321J.2(8)(a) is expressly upon the concentration of alcohol in the defendant’s body at the time of driving because that is the temporal focus of a charge filed under section 321J.2(1). Although the legislature could have incorporated a similar temporal focus as a feature of sentencing in section 321J.2(3)(a)(1), it did not do so. We conclude the omission signals a legislative intent to deny a deferred judgment to any defendant whose alcohol concentration exceeds .15 in a specimen withdrawn pursuant to chapter 321J, notwithstanding the concentration might have been lower than .15 at the time the defendant drove a vehicle.

In spite of the clear statutory language governing this case, Jensen insists there must be a connection between proof of the elements of the crime and the availability of sentencing options. He contends sound policy should preclude the sentencing of a defendant for violation of section 321J.2 based on a determination of his alcohol concentration at a time other than when he drove. We disagree. The legislature may direct a court to sentence a defendant based on policy considerations and statutory criteria that are distinct from the precise elements of the crime of which the defendant has been convicted. See, e.g., Iowa Code § 321J.2(3)(a)(2)-(3) (sentencing enhancements for defendants who have previously been convicted of OWI or have previously received a deferred judgment or sentence for OWI); id. § 901A.2 (sentencing enhancements for defendants previously convicted of sexually predatory offenses); id. § 902.8 (minimum sentences for habitual offenders). The legislature has done so in section 321J.2(3)(a)(1) by prescribing that a defendant convicted of violating section 321J.2(1) shall be ineligible for a deferred judgment if the alcohol concentration in a blood, breath or urine sample withdrawn under chapter 321J exceeds .15, without regard to the fact that the concentration may have been lower when he drove while under the influence of alcohol or with an alcohol concentration of .08 or more.

Chapter 321J makes it illegal to operate a motor vehicle while having an alcohol concentration in excess of .08 or at such concentration as to render the operator under the influence of alcohol. Id. § 321J.2(1)(a)-(6). Section 321J.2(3)(a)(1) evidences the legislature’s policy choice to enhance deterrence of a particular subset of behavior: driving after drinking a sufficient quantity of alcohol to produce an alcohol concentration in excess of .15. The enhanced deterrence takes its form in a limitation on the district court’s discretion in sentencing defendants who have consumed enough alcohol before driving to test in excess of .15. This sentencing parameter is the functional equivalent of a sentencing enhancement distinct from the elements of the underlying charge. Jensen was convicted of a violation of section 321J.2(l)(a) for operating while under the influence of alcohol, and he was ineligible for a deferred judgment because the breath specimen drawn in connection with the charge evidenced an alcohol concentration in excess of .15. Accordingly, we sustain the writ, vacate the sentence and remand for resentencing consistent with this opinion.

WRIT SUSTAINED; SENTENCE VACATED; REMANDED FOR RESEN-TENCING.