Harris v. Bradley Memorial Hospital & Health Center, Inc.

****************************************************** The ‘‘officially released’’ date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ‘‘officially released’’ date appearing in the opinion. In no event will any such motions be accepted before the ‘‘officially released’’ date. All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Con- necticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be repro- duced and distributed without the express written per- mission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ******************************************************  STEPHEN HARRIS v. BRADLEY MEMORIAL HOSPITAL AND HEALTH CENTER, INC. (SC 18944) Palmer, Zarella, McLachlan, Harper and Gruendel, Js.* Argued May 16—officially released September 4, 2012 Michael G. Rigg, with whom was Steven V. Manning, for the appellant (defendant). P. Jo Anne Burgh, with whom was Mary Alice Moore Leonhardt, for the appellee (plaintiff).  Opinion HARPER, J. This case, involving the summary suspen- sion of the medical privileges of the plaintiff, Stephen Harris, by the defendant, Bradley Memorial Hospital and Health Center, Inc., comes to this court for the second time. In the plaintiff’s appeal; Harris v. Bradley Memorial Hospital & Health Center, Inc., 296 Conn. 315, 319–20, 994 A.2d 153 (2010); this court determined that the trial court improperly had granted the defen- dant’s motion for judgment notwithstanding the verdict on claims of breach of contract, breach of the implied covenant of good faith and fair dealing, and tortious interference with business expectancies1 due to the plaintiff’s failure to prove that the underlying adminis- trative proceedings ultimately had terminated in his favor and improperly had denied the plaintiff’s motion for punitive damages. Accordingly, we reversed the judgment as to the grant of the motion for judgment notwithstanding the verdict and as to the denial of the motion for punitive damages and remanded the case for further proceedings. Id., 351–52. The present appeal arises from the proceedings on remand that resulted in the plaintiff being awarded puni- tive damages and offer of judgment interest pursuant to General Statutes § 52-192a. The defendant now appeals from the trial court’s judgment,2 claiming that: (1) it was entitled to immunity as a matter of law under the federal Health Care Quality Improvement Act of 1986 (federal act), 42 U.S.C. § 11101 et seq., from damages arising from its summary suspension of the plaintiff’s privileges; (2) the trial court improperly instructed the jury regarding the standard for determining immunity under the federal act; (3) the award of common-law punitive damages violated the defendant’s constitu- tional right to due process; (4) the award of common- law punitive damages violated the defendant’s right to immunity under the federal act and the common law; and (5) the offer of judgment interest violated the defen- dant’s right to due process. The plaintiff contends that the defendant is precluded from raising the first two claims due to its failure to properly raise them in the previous appeal in which the jury verdict was at issue and that we should reject the remaining claims relating to punitive damages and offer of judgment interest on the merits. We conclude that the defendant is not pre- cluded from raising its immunity claims and that it is entitled to immunity from money damages under the federal act as a matter of law. Accordingly, we reverse the judgment. In the first appeal, we set forth in substantial detail the underlying facts that the jury reasonably could have found. Harris v. Bradley Memorial Hospital & Health Center, Inc., supra, 296 Conn. 320–25. We summarize those facts, and the pertinent procedural history reflected in the record, that are necessary to an under- standing of the issues presently before us. In 1993, the plaintiff, a general surgeon, was admitted to the defen- dant’s medical staff and granted privileges, which the defendant periodically renewed. In 1999, following the renewal of the plaintiff’s privileges earlier that year, a patient sustained an injury during a surgical procedure performed by the plaintiff. After a review of that proce- dure at the department of surgery’s monthly morbidity and mortality meeting, the plaintiff agreed to a six month period of observation, after which time the plain- tiff’s privileges were fully restored. In late 2000, members of the defendant’s administra- tion informed the plaintiff that, because of concerns about his clinical capabilities, an outside entity would be contacted to perform a review and analyze his cases. In fact, the proposed external review already had been conducted, based on a nonrandom sample of only those surgical cases of the plaintiff that previously had been subject to review at the morbidity and mortality meet- ings due to some complication or error that had occurred. Shortly thereafter, the plaintiff was informed that the external review had been completed and that, because the report was unfavorable, the defendant’s medical executive committee had decided to form a peer review panel for the purpose of conducting further review of the plaintiff’s cases. An additional nonrandom sample of the plaintiff’s cases in which issues had arisen was submitted to the peer review panel. In early 2001, the plaintiff was summoned to appear before the peer review panel, with no prior notice of the meeting date or the cases on which he would be questioned. Following that meeting, the peer review panel prepared a report in which it questioned the plain- tiff’s ability to safely function independently as a general surgeon in light of the panel’s conclusions that the surgi- cal care provided by the plaintiff during the period of time reviewed evidenced global deficits and did not meet the standard of care expected of a board certified general surgeon. Shortly thereafter, the reports of both the peer review panel and the external review were presented at the monthly meeting of the medical execu- tive committee. The committee summarily suspended the plaintiff’s surgical privileges effective immediately and limited his privileges to assisting in the operating room. Pursuant to the defendant’s medical staff bylaws, the plaintiff then sought review of the medical executive committee’s action. On review, the hearing panel found that the plaintiff had not met his burden of proving that the decision suspending his privileges was not sustained by the evidence, unreasonable or otherwise unfounded. On the basis of its findings, the hearing panel recom- mended that the summary suspension be continued. The defendant’s board of directors subsequently rejected the plaintiff’s appeal from the decision of the hearing panel, in which the plaintiff had claimed that the suspension was unwarranted, motivated by the bad faith of a competing surgeon who had assumed the position of chairman of the department of surgery in September, 2000, and impeded by the lack of due process. Thereafter, the plaintiff commenced the present action, alleging in a four count complaint: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) tortious interference with business expectancies; and (4) a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The plaintiff sought damages and a permanent injunction requiring the defendant to cease and desist from terminating the plaintiff’s privileges and interfering with his patient relationships. In response, the defendant asserted a special defense that it was immune from liability under the federal act, which cov- ers professional peer review actions by health care pro- viders such as hospitals.3 Prior to trial, the defendant filed a motion for sum- mary judgment, claiming that the plaintiff was unable to rebut the statutory presumption of immunity under the federal act. The trial court, Burke, J., granted the motion in part and denied it in part. The court first determined that the federal act applies an objectively reasonable standard for examining a ‘‘professional review action’’; see footnote 14 of this opinion; to which the presumption of immunity applies under the federal act, and thus, the plaintiff’s allegations of bad faith were irrelevant. The court further determined that there had been more than one professional review action and that the plaintiff had demonstrated the existence of a material question of fact as to whether at least one of them, the proceedings culminating in the summary suspension of the plaintiff’s privileges by the medical executive committee, satisfied the statutory criteria for immunity. Specifically, the court determined that the plaintiff had presented sufficient evidence to raise a question as to whether he had rebutted the presumption that the defendant had met two of the conditions for immunity to apply—that the defendant had made rea- sonable efforts to obtain the facts and had provided the plaintiff with adequate notice and the opportunity to be heard. 42 U.S.C. § 11112 (a) (2) and (3); see foot- note 13 of this opinion for the text of that statute. The court rejected the defendant’s claim that, even if it had not complied with those requirements, it nonetheless was immune from liability for its summary suspension of the plaintiff’s privileges under the federal act’s emer- gency provision, which applies where the failure to act ‘‘may result in an imminent danger to the health of any individual.’’ 42 U.S.C. § 11112 (c) (2). The court concluded that the rebuttable presumption of immunity did not apply to this exception, and, therefore, the bur- den was on the defendant to produce evidence of immi- nent danger, which it had not done. With respect to the professional review actions following the summary suspension and culminating in the sustained suspen- sion, however, the court concluded that the defendant was entitled to summary judgment as to any claim of damages arising from the sustained suspension because the plaintiff had produced no evidence to rebut the statutory presumption of immunity. Finally, the court concluded that the federal act provides immunity only with respect to damages. Therefore, the court denied the defendant’s motion as to the plaintiff’s claims for injunctive relief, denied the motion as to the claim for damages resulting from the summary suspension of the plaintiff’s privileges by the defendant’s medical execu- tive committee, and granted the motion as to the plain- tiff’s claim for damages for the defendant’s actions subsequent to the summary suspension. Thereafter, the case proceeded to trial, with the jury to decide the claims for damages arising from the sum- mary suspension, followed by a trial to the court on the request for injunctive relief. Following the presenta- tion of the plaintiff’s case, the defendant filed a motion for a directed verdict. The trial court, Schuman, J., granted the motion with respect to the fourth count of the complaint, the alleged CUTPA violation, and reserved decision on the three remaining claims. The jury subsequently returned a verdict in favor of the plaintiff on those claims, awarding $250,000 in eco- nomic and noneconomic damages plus punitive dam- ages in an amount to be determined by the court. Thereafter, the trial court denied the plaintiff’s request for injunctive relief. The court then turned to the parties’ postverdict motions. The court denied the plaintiff’s motion for punitive damages and granted the defendant’s motion for judgment notwithstanding the verdict. In granting that motion, the trial court determined that the plaintiff could not prevail without demonstrating that the under- lying proceedings ultimately had terminated in his favor and expressly declined to reach the issue of immunity under the federal act. Although the court’s decision rendered it unnecessary to consider the defendant’s motion for remittitur, the court nonetheless granted the motion and ordered remittitur of $100,000. Accordingly, the trial court rendered judgment in favor of the defen- dant with respect to counts one, two and three of the complaint. The plaintiff appealed from the judgment to the Appellate Court, and we transferred the appeal to this court. We first concluded that the trial court improperly had granted the defendant’s motion for judgment not- withstanding the verdict because the favorable termina- tion element required to prevail in certain other actions does not apply to an action for damages in connection with a hospital’s decision to suspend or terminate a physician’s privileges. Harris v. Bradley Memorial Hos- pital & Health Center, Inc., supra, 296 Conn. 336. We rejected on the merits one alternate ground for affirming the judgment advanced by the defendant— that the defendant substantially had complied with its bylaws—and declined to consider another due to lack of preservation—that the plaintiff had failed to rebut the statutory presumption that the defendant was immune from liability under the federal act. Id., 345–46. We then turned to the plaintiff’s challenge to the denial of his motion for punitive damages, concluding that the trial court’s decision was improper in light of evidence in the record supporting the jury’s finding that the defendant tortiously had interfered with the plaintiff’s business expectancies with reckless indifference as to whether that conduct would injure him. Id., 348. We rejected, however, the plaintiff’s claims that the trial court improperly had reached and granted the defendant’s motion for remittitur; id., 349; and that the trial court improperly had directed a verdict in favor of the defen- dant on the CUPTA claim. Id., 350. Accordingly, we reversed the judgment as to the grant of the motion for judgment notwithstanding the verdict and as to the denial of the motion for punitive damages, and remanded the case for further proceedings according to law. We affirmed the judgment in all other respects. Id., 351–52. On remand, the trial court, Pittman, J., held an evi- dentiary hearing on the issue of punitive damages. Fol- lowing those proceedings, the court entered judgment on the first, second and third counts of the plaintiff’s complaint in the amount of $150,000 plus taxable costs, ‘‘[a]s directed by the Supreme Court . . . .’’ With respect to punitive damages relating to the third count, tortious interference with business expectancies, the court awarded the plaintiff punitive damages in the amount of $612,919.20, which included fees and costs relating to proceedings before the department of health, the defendant’s internal review bodies, the Superior Court and the Supreme Court, as well as fees for the plaintiff’s expert witness. Following the entry of judg- ment in his favor, the plaintiff filed a motion for offer of judgment interest, pursuant to § 52-192a, which the court granted over the defendant’s objection in the amount of $266,373.94. This appeal followed. On appeal, the defendant contends that: (1) it was entitled to immunity from liability as a matter of law under the federal act for damages arising out of the summary suspension of the plaintiff’s privileges; (2) the jury charge improperly failed to state that the defendant is entitled to a rebuttable presumption that its summary suspension of the plaintiff’s privileges was objectively reasonable and that to overcome this presumption, the plaintiff was required to establish that substantial evi- dence did not exist in the record to support the defen- dant’s decision; (3) the award of common-law punitive damages violated the due process clause of the federal constitution; (4) the award of common-law punitive damages violated the defendant’s right to immunity under the federal act and the common law; and (5) the offer of judgment interest violated the defendant’s right to due process. In response, the plaintiff contests the first two claims on procedural grounds only and contests the remaining claims on the merits. Specifically, the plaintiff points to the fact that the defendant’s first and second claims, which are predicated on its immunity from liability under the federal act, would, if successful, effectively reverse the effect of this court’s decision in the first appeal reinstating the jury’s verdict in favor of the plain- tiff. As such, the plaintiff contends that the defendant was required to properly raise them as alternate grounds for affirmance in the previous appeal and is precluded from raising them in this appeal. We conclude that the defendant is not precluded from asserting these claims in the present appeal and that the defendant is entitled to prevail on its first claim. Because the defen- dant is entitled to immunity from all money damages awards, we need not reach its remaining claims. I As a threshold matter, we begin with the plaintiff’s contention that the defendant should be precluded from bringing its immunity claims because it was required to properly raise them as alternate grounds for affirmance in the previous appeal. In support of his position, the plaintiff cites the rules of practice, princi- ples of waiver and the scope of this court’s remand in the previous appeal. The defendant responds that, because it was the appellee in the previous appeal, any deficiency on its part with regard to raising claims on appeal did not result in any forfeiture, and neither the rules of practice nor the scope of our previous remand preclude it from raising these claims here. We agree with the defendant. The record reveals the following additional facts and procedural history that form the backdrop to this issue. In the plaintiff’s appeal seeking to reverse the trial court’s grant of the defendant’s motion for judgment notwithstanding the verdict, the defendant had claimed, inter alia, ‘‘that the judgment of the trial court may be affirmed on the alternate ground that the plaintiff failed to rebut the statutory presumption that the defendant was immune from monetary liability under the [federal act] . . . .’’ Id., 342–43. We noted that the defendant consistently had claimed before the trial court that it was entitled to immunity under the federal act. Id., 344. Nonetheless, we held that, ‘‘[b]ecause the defendant has not challenged on appeal either the court’s instruc- tions to the jury regarding the defendant’s special defense of immunity or the submission of the interroga- tory to the jury on the defendant’s special defense, we conclude that the defendant has failed to preserve its claim that the jury’s finding that it was not entitled to immunity was not supported by the evidence.’’ Id., 343. In explaining this conclusion, we reasoned: ‘‘The defen- dant’s failure to challenge the jury charge and the sub- mission of the interrogatory in this appeal, despite its claim that it was entitled to immunity under 42 U.S.C. § 11112 (c) (2) and that this court, in considering the defendant’s claim, should assume that the defendant was entitled to the presumption in 42 U.S.C. § 11112 (a), is problematic. The defendant asks us to conclude that the trial court properly could have granted the motion for judgment notwithstanding the jury’s verdict on this basis, yet does not claim that the jury was misled by an improper charge or interrogatory. The defendant asks us to decide the issue, therefore, under a standard that was never submitted to the jury for its consider- ation. Put another way, the defendant’s argument appears to ask us to assume that, if the jury had been instructed in accordance with the defendant’s interpre- tation of the [federal] act, placing the burden on the plaintiff to rebut the presumption that the defendant was entitled to immunity under 42 U.S.C. § 11112 (c) (2), the jury could not reasonably have concluded that the defendant was not entitled to immunity. That we cannot do—we cannot usurp the plaintiff’s right to have the issues decided by the jury. The defendant cannot circumvent that right by asking us to decide a question that was never presented to the jury, in the absence of a claim that the jury was misled by an improper instruction or interrogatory. The defendant’s claim is unpreserved and we do not review it.’’ Id., 345–46. It is undisputed that, in the previous appeal in which the defendant was the appellee, the defendant failed to properly raise its immunity claim as an alternate ground for affirmance and that this court consequently declined to address the merits of the claim. In the present appeal, the defendant, as the appellant, both renews its previous assertion that it is entitled to judgment as a matter of law on immunity grounds and raises a new claim of instructional impropriety relating to that immunity defense. Thus, by advancing a claim of instructional impropriety, the defendant seeks to rectify the defect we had identified as precluding a decision on the merits on the alternate ground for affirmance asserted in the plaintiff’s appeal.4 Accordingly, there are two issues for us to consider: first, as a general matter, whether appellees are required to raise all available claims to avoid forfeiture; and second, even if appellees generally are not so bound, whether the fact that the defendant attempted to raise one of these claims previously but failed to obtain a decision on the merits precludes it from raising its claims in this appeal. We conclude that the defendant is not precluded from advancing these claims. We begin our analysis with the general rule that ‘‘[a]n appellant who fails to brief a claim abandons it . . . .’’ (Citations omitted; emphasis added.) State v. Zarick, 227 Conn. 207, 221, 630 A.2d 565, cert. denied, 510 U.S. 1025, 114 S. Ct. 637, 126 L. Ed. 2d 595 (1993). As the Third Circuit Court of Appeals has explained, ‘‘[a]dherence to the rule that a party waives a contention that could have been but was not raised on [a] prior appeal . . . is, of course, necessary to the orderly conduct of litigation. Failure to follow this rule would lead to the bizarre result, as stated admirably by Judge Friendly [in Fogel v. Chestnutt, 668 F.2d 100, 109 (2d Cir. 1981), cert. denied sub nom. Currier v. Fogel, 459 U.S. 828, 103 S. Ct. 65, 74 L. Ed. 2d 66 (1982)], that a party who has chosen not to argue a point on a first appeal should stand better as regards the law of the case than one who had argued and lost.’’ (Citation omitted; internal quotation marks omitted.) Cowgill v. Raymark Indus- tries, Inc., 832 F.2d 798, 802–803 n.2 (3d Cir. 1987). In keeping with this reasoning, this court previously has refused to consider claims on subsequent appeals by the same party in which ‘‘[n]o valid reason has been alleged as to why the [appellant] could not have brought the present claim when the prior one was brought.’’ State v. Aillon, 189 Conn. 416, 427, 456 A.2d 279, cert. denied, 464 U.S. 837, 104 S. Ct. 124, 78 L. Ed. 2d 122 (1983); State v. Long, 301 Conn. 216, 242, 19 A.3d 1242, cert. denied, U.S. , 132 S. Ct. 827, 181 L. Ed. 2d 535 (2011). Although this forfeiture rule is well and widely estab- lished with respect to the failure of an appellant to raise a claim, the applicability of the rule to an appellee is the subject of considerable doctrinal uncertainty. See 18B A. Wright et al., Federal Practice and Procedure: Jurisdiction and Related Matters (2d Ed. 2002) § 4478.6, p. 831 (‘‘[f]ailure to advance arguments as [an] appellee, whether by brief or by cross-appeal, has not generated anything like the consistent responses that have met an appellant’s omission of arguments on an appeal actually taken’’). The reason for courts’ hesitation to apply the forfeiture rule equally to appellants and appellees has been articulated aptly by the District of Columbia Cir- cuit Court of Appeals: ‘‘While there are clear adjudica- tive efficiencies created by requiring appellants to bring all of their objections to a judgment in a single appeal rather than seriatim . . . forcing appellees to put forth every conceivable alternative ground for affirmance might increase the complexity and scope of appeals more than it would streamline the progress of the litiga- tion. While an appellant must persuade the court to overturn a district court ruling, it enjoys the offsetting procedural benefit of filing both the opening and reply briefs. On the other hand, an appellee presenting alter- native grounds for affirmance and facing a potential application of the waiver doctrine must also attack an adverse district court ruling, but without the offsetting advantage of being able to file a reply brief.’’5 Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 740–41 (D.C. Cir. 1995). In some cases, an appellee may surmount this proce- dural disadvantage by filing a cross appeal pursuant to Practice Book § 61-8. The procedural posture of the prior appeal in this case, however, foreclosed such a solution. The defendant could not have properly filed a cross appeal challenging the underlying jury verdict on the basis of immunity under the federal act because the trial court’s judgment notwithstanding the verdict, albeit on a different ground, already had provided the defendant with complete relief. See Seymour v. Sey- mour, 262 Conn. 107, 109–11, 809 A.2d 1114 (2002) (concluding that court lacked subject matter jurisdic- tion over appeal because party not aggrieved and citing supporting cases). Unlike some other jurisdictions, Connecticut courts have not recognized so-called ‘‘pro- tective’’ or ‘‘conditional’’ cross appeals. Under such a procedure, a party that is not aggrieved ‘‘will cross- appeal to [e]nsure that any errors against his interests are reviewed so that if the main appeal results in modifi- cation of the judgment his grievances will be deter- mined as well. . . . The theory for allowing a conditional cross-appeal is that as soon as the appellate court decides to modify the trial court’s judgment, that judgment may become ‘adverse’ to the cross-appellant’s interests and thus qualify as fair game for an appeal . . . .’’6 Hartman v. Duffey, 19 F.3d 1459, 1465 (D.C. Cir. 1994). In Connecticut, this court has wrestled with the com- peting considerations of policy and judicial economy at issue, ultimately concluding that ‘‘[i]t would have served the interest of judicial economy for [the appel- lee] to have apprised this court of his constitutional claim on the first appeal, rather than to remain silent at that time and to reassert his objection on remand. Our rules of practice, however, which permit an appellee to suggest alternate bases for affirmance not ruled upon by the trial court, do not require the appellee to pursue such a course. . . . Failure to present alternate grounds on appeal does not result in the forfeiture of otherwise valid claims.’’ (Citations omitted.) Beccia v. Waterbury, 192 Conn. 127, 132, 470 A.2d 1202 (1984);7 see also Harris v. Commissioner of Correction, 271 Conn. 808, 842 n.24, 860 A.2d 715 (2004) (‘‘There is no rule . . . that an appellee’s failure to reply in its brief to an issue raised by the appellant is an implicit concession that the appellant’s claim is meritorious and that the claim should be decided in the appellant’s favor. Aban- donment of a claim for failure of a party to brief that claim typically occurs when the appellant fails to brief properly the claim that is raised on appeal.’’ [Emphasis in original.]). Although this court’s decision in Beccia would seem to dispose of the plaintiff’s forfeiture argument at least as to the defendant’s claim of instructional error, he contends that the court’s conclusion in Beccia was dependent on a rule of practice that since has been amended to require appellees to assert any alternate ground for affirmance. Although the plaintiff is correct that the rule of practice cited in Beccia v. Waterbury, supra, 192 Conn. 132 and n.4, has since been slightly revised, both versions of the rule plainly set forth a set of procedures governing the manner in which an alternate ground is to be raised provided a party ‘‘wishes’’ to do so. Compare Practice Book (1979) § 3012 (a) with Practice Book § 63-4 (a) (1).8 Contrary to the plaintiff’s interpretation, the operative language of the provision therefore remains, for purposes of this appeal, discretionary with respect to whether an appellant chooses to submit any or all alternate grounds for affirmance. See Harris v. Commissioner of Correction, supra, 271 Conn. 841–42 n.24. Therefore, we see no reason to depart at this time from the previously announced general principle that an appellee will not be deemed to have forfeited a claim that could have been, but was not, brought in the context of the appel- lant’s appeal. This general principle does not, however, definitively answer the question of whether the jury verdict rein- stated in the plaintiff’s prior appeal should be treated as final and unappealable given the particular procedural posture of this case. Unlike the appellant considered in Beccia, who chose merely to ‘‘remain silent’’ regard- ing its claims in a prior appeal; Beccia v. Waterbury, supra, 192 Conn. 132; the defendant in the present case previously attempted to raise an alternate ground for affirmance on the basis of its immunity special defense, but this court declined to address the merits of that claim. The defendant has thus already caused this court to expend judicial resources considering its claim and has compelled the plaintiff to devote resources attempting to rebut that claim. It now seeks a second chance to make the same general arguments it pre- viously failed properly to raise, having taken advantage of this court’s prior opinion to remedy that failure. We conclude that, on balance, considerations of judi- cial economy do not justify a departure in the present case from the rule announced in Beccia, which this court crafted expressly notwithstanding the counter- vailing value of judicial economy.9 The defendant’s immunity claim has never been considered by this court on the merits,10 and the court did not expend consider- able judicial resources in ascertaining whether we could review the claim. We decline, however, to hold categori- cally that the nonforfeiture rule announced in Beccia will always apply to save improperly raised claims by an appellee in a previous appeal. We recognize that there may be unusual instances in which addressing an improperly presented claim requires such an expendi- ture of judicial resources that further consideration of that claim will properly be deemed forfeited. The final jurisprudential consideration advanced by the plaintiff in support of his preclusion argument is that the defendant’s claim of immunity falls outside the confines of this court’s remand in the previous appeal. Specifically, the plaintiff contends that, because this court in the previous appeal concluded that the jury verdict in his favor should be reinstated and ordered further substantive proceedings only on the issue of punitive damages, the question of immunity may not now be raised because it is beyond the scope of that remand. We conclude that the plaintiff has miscon- strued our case law as to this issue. In addressing the effect of a remand order, this court has noted that ‘‘[d]etermining the scope of a remand is a matter of law because it requires the trial court to undertake a legal interpretation of the higher court’s mandate in light of that court’s analysis. See, e.g., Hig- gins v. Karp, 243 Conn. 495, 502–503, 706 A.2d 1 (1998) (duty of trial court to comply with Supreme Court man- date according to its true intent and meaning . . .). Because a mandate defines the trial court’s authority to proceed with the case on remand, determining the scope of a remand is akin to determining subject matter jurisdiction.’’ (Internal quotation marks omitted.) Gia- netti v. Norwalk Hospital, 304 Conn. 754, 791, 43 A.3d 567 (2012). As this statement makes clear, although our limited remand in the previous appeal certainly would have precluded the trial court from considering the defendant’s renewed immunity claim; Higgins v. Karp, supra, 502; the same limitation does not apply to this court. See 5 Am. Jur. 2d 453, Appellate Review § 784 (1995) (lower court powerless to undertake any pro- ceedings beyond those specified by higher court’s opin- ion and mandate). This court’s remand, intended to direct the scope of the trial court’s action, would not operate as a constraint on this court’s authority, and the plaintiff has pointed to no authority holding as such.11 In the absence of any other articulated jurisprudential basis for deeming the defendant as being precluded from advancing its immunity claims in the present case, we reject the plaintiff’s preclusion claim. The defendant did not obtain a decision on the merits of its immunity defense as the appellee in the previous appeal and as the appellant in the present appeal, it has remedied the procedural defect that we had identified previously.12 II We turn now to the merits of the defendant’s claim that it is entitled to immunity from money damages as a matter of law under the federal act because it satisfied the standards provided in 42 U.S.C. § 1111213 that qualify a professional review action14 for immunity. Specifi- cally, the defendant contends that, although profes- sional review actions generally must be preceded by certain notice and hearing procedures to be entitled to a presumption of immunity, procedures that the defen- dant did not afford the plaintiff in the present case, a summary suspension followed by notice and a hearing nonetheless is entitled to that presumption when neces- sary to prevent imminent danger to patients. The defen- dant asserts that the plaintiff’s failure to rebut that presumption entitles the defendant to judgment as a matter of law. We agree with the defendant. Before turning to the standard of review and the particular legal question raised, it is useful to provide a brief description of the statutory landscape in which this question arises. The federal act was crafted in response to, inter alia, the increased occurrence of med- ical malpractice; 42 U.S.C. § 11101 (1); and seeks to address the ‘‘overriding national need to provide incen- tive and protection for physicians engaging in effective professional peer review.’’ 42 U.S.C. § 11101 (5). The federal act accordingly provides, with a limited excep- tion not applicable in the present case, immunity from liability in damages under any federal or state law ‘‘[i]f a professional review action . . . of a professional review body meets all the standards specified in section 11112(a) of this title . . . .’’ 42 U.S.C. § 11111 (a). Section 11112 (a) sets forth four standards, one of which is that the professional review action must take place ‘‘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 . . . .’’ 42 U.S.C § 11112 (a) (3). Subsec- tion (a) further provides that ‘‘[a] professional review action shall be presumed to have met the preceding standards necessary for the protection set out in section 11111(a) of this title unless the presumption is rebutted by a preponderance of the evidence.’’ 42 U.S.C. § 11112 (a). The defendant concedes that the summary suspen- sion of the plaintiff’s privileges was not preceded by any notice and hearing procedures as directed by § 11112 (a). The defendant instead relies on subsection (c) of § 11112, which permits summary suspension of physi- cians in certain circumstances where there has not yet been a notice and hearing process. Section 11112 (c), entitled ‘‘Adequate procedures in investigations or health emergencies,’’ provides in relevant part: ‘‘[N]oth- ing in this section shall be construed as . . . precluding an immediate suspension or restriction of clinical privi- leges, subject to subsequent notice and hearing or other adequate procedures, where the failure to take such an action may result in an imminent danger to the health of any individual.’’ 42 U.S.C. § 11112 (c) (2). With this background in mind, we turn to the defendant’s claim. A The threshold legal question we must consider is whether the presumption of immunity in 42 U.S.C. § 11112 (a) applies when a professional review body properly acts under § 11112 (c). The defendant con- tends that the endorsement by § 11112 (c) (2) of sum- mary suspension followed by notice and hearing provides an example of ‘‘such other procedures as are fair to the physician under the circumstances’’ for pur- poses of § 11112 (a) (3). The trial court concluded, in rejecting the defendant’s motion for summary judg- ment, that § 11112 (c) (2) describes an alternate ground for immunity that stands entirely apart from § 11112 (a) and does not fall within the scope of the presumption under that provision. The plaintiff has not briefed this question, apparently resting on the trial court’s sum- mary rejection of the defendant’s view of the federal act when denying in relevant part the defendant’s motion for a directed verdict. Generally, ‘‘[a] directed verdict is justified if on the evidence the jury could not reasonably and legally have reached any other conclusion. . . . [W]e must consider the evidence in the light most favorable to the [nonmov- ing party].’’ (Internal quotation marks omitted.) Updike, Kelly & Spellacy, P.C. v. Beckett, 269 Conn. 613, 634, 850 A.2d 145 (2004). Unlike a typical special defense, under which the question on a defendant’s motion for a directed verdict would be whether the defendant has met its burden of persuasion as a matter of law, because the federal act provides a presumption of immunity, courts have recognized that immunity claims based on the federal act call for an ‘‘unusual’’ inquiry, namely: ‘‘[m]ight a reasonable jury, viewing the facts in the best light for [the plaintiff], conclude that [the plaintiff] has shown, by a preponderance of the evidence, that the defendant[’s] actions are outside the scope of § 11112 (a)?’’ (Emphasis added.) Austin v. McNamara, 979 F.2d 728, 734 (9th Cir. 1992). To determine which of these analytic postures applies, we therefore must consider whether the presumption of immunity provided in 42 U.S.C. § 11112 (a), and the resulting unusual review, also covers summary suspensions contemplated in the emergency provision under § 11112 (c) (2). This issue solely concerns the proper construction of § 11112, and we therefore exercise plenary review over the trial court’s decision in this respect. Stewart v. Watertown, 303 Conn. 699, 710, 38 A.3d 72 (2012). Consideration of the statutory text reveals no clear answer to this question. On the one hand, § 11112 (c) (2) stands structurally ap