MEMORANDUM
Presently before the court are motions for summary judgment by defendants—
I. Statement of Facts 1
A. The Parties
Pinnacle Health Hospitals, a non-profit corporation, is a subsidiary of Pinnacle Health System. Pinnacle Health System was created in 1996 by the merger of Harrisburg Hospital, Seidle Memorial Hospital, and Polyclinic Hospital. (Doc. 103 ¶ 4; Doc. 113 ¶4; Doc. 105, Ex. GG at 1, 3-4.) Pinnacle owns and operates Harrisburg Hospital and numerous outpatient clinics, including the Women’s Outpatient Health Center (“WOHC”), an obstetrics and gynecology (“OB/GYN”) outpatient clinic. (Doc. 106, Ex. EEE at 10, 29; Doc. 106, Ex. RRR ¶ 21.)
Dr. Bakare is a licensed physician in Pennsylvania and a board certified OB/ GYN physician. (Doc. 113, Ex. 1 ¶ 5.) When Dr. Bakare began his private medical practice in 1986, he worked part-time at the OB/GYN clinic at Polyclinic Hospital. From 1987 through August 27, 2002, 2 Dr. Bakare had unrestricted staff privileges at Pinnacle Health Hospitals and/or its predecessors. 3 From 1987 through August 30, 2002, 4 Dr. Bakare also worked as a contract physician at the OB/GYN clinic of Hamilton Health Center (“Hamilton”). (Doc. 113, Ex. 1 ¶¶ 12-16.)
Since July 2001, Dr. Longenderfer has served as the President and Chief Executive Officer of Pinnacle Health System. Previously, Dr. Longenderfer was the Chief Operating Officer and Vice President of Medical Affairs for Pinnacle Health Hospitals. He is an ex-officio member of the Medical Executive Committee (“MEC”) of Pinnacle Health Hospitals. (Doc. 103 ¶¶ 5-7; Doc. 113 ¶¶ 5-7.)
Dr. Kellis has served as the Senior Vice President of Medical Affairs of Pinnacle Health System since August 2001 and is a member of MEC. (Doc. 103 ¶ 8; Doc. 113 ¶ 8.)
Dr. Bronitsky, a licensed OB/GYN physician, was Chairman of Pinnacle Health Hospitals’ OB/GYN Department from 2000 until October 2002, when he moved his medical practice to Arizona. (Doc. 103 ¶ 12; Doc. 113 ¶ 12.)
Dr. Moore, a physician specializing in neurosurgery, is a member of the medical staff at Pinnacle Health Hospitals and of MEC. (Doc. 103 ¶ 10; Doc. 113 ¶ 10.)
Dr. Evans, a licensed OB/GYN physician, was the Chairman of Pinnacle’s Quality Assessment (“QA”) Committee until he left his Pennsylvania practice in August
B. Proposed Combination of Pinnacle and Hamilton’s OB/GYN Services
On January 17, 2002, representatives from Pinnacle and Hamilton met to discuss a potential collaboration of their OB/GYN programs. The preliminary collaboration plan contemplated that Hamilton would: (1) assume control of Pinnacle’s WOHC, (2) lease from Pinnacle the facilities and equipment utilized by the WOHC, and (3) contract with Pinnacle for back office support services (e.g., billing). In addition, Pinnacle would assist Hamilton with quality assurance programs. (Doc. 103 ¶ 260; Doc. 113 ¶ 260.) In February 2002, Pinnacle and Hamilton exchanged financial information and Pinnacle sent a draft lease for the WOHC facilities and equipment to Hamilton. (Doc. 103 ¶¶ 261-62; Doc. 113 ¶¶ 261-62.) Hamilton used this information to perform a financial analysis of the proposed combination. (Doc. 103 ¶ 263; Doc. 113 ¶ 263.)
Discussions regarding the proposed combination continued during the summer of 2002. Representatives of the Pinnacle and Hamilton Boards met and Hamilton officials toured the WOHC. (Doc. 103 ¶ 264; Doc. 113 ¶ 264.) Then, the first obstacle to the combination arose. Hamilton’s financial advisor reported to the Hamilton Board that the combined clinic under Hamilton’s control would likely operate at a loss of one million ($1,000,-000.00) dollars. On August 20, 2002, Dr. Longenderfer discussed Hamilton’s financial concerns, specifically this projected substantial loss, with the Pinnacle Board’s executive committee. Dr. Longenderfer informed the executive committee that Pinnacle management was exploring various means of providing financial safeguards to Hamilton. (Doc. 103 ¶ 265; Doc. 113 ¶ 265.)
On September 23, 2002, Pinnacle management presented its Board with a specific proposal for the combination with Hamilton. 5 The proposal provided: (1) Pinnacle would subsidize Hamilton’s losses, up to $1 million the first three years, up to $750,000 the fourth year, and up to $500,000 the fifth year; (2) if Hamilton could not operate without the $1 million subsidy by the fourth year, it “may require Pinnacle Health to resume its program at its previous level;” (3) Pinnacle would receive minority representation on the Hamilton Health Board of Directors; (4) Hamilton would provide 24-7 emergency room coverage at Harrisburg Hospital for medical assistance and uninsured patients who do not have an OB/GYN physician; (5) Hamilton would lease WOHC space at $148,000 per year; and (6) Pinnacle Health would assume a significant role in quality assurance. (Doc. 104, Ex. C at P00229-31.) With this proposal, Pinnacle management sought the approval of Pinnacle’s Board “for management to enter into an arrangement with Hamilton Health Center to provide for the consolidation of the respective OB/GYN clinics.” (Doc. 104, Ex. C at P00230.) After review of management’s proposal, the Pinnacle Board approved the proposal and authorized management to present it to Hamilton. (Doc. 104, Ex. C at P03188-89.)
Not surprisingly, there were no further negotiations between Pinnacle and Hamilton regarding the proposed combination of their OB/GYN services. Hamilton chose to discontinue discussions because it was concerned about the financial risks involved and the potentially insurmountable “cultural” conflicts between Hamilton and the WOHC. 6 (Doc. 106, Ex. Ill at 51-52, 100.) During the preliminary negotiations, the parties did not initiate the lengthy process of securing necessary government regulatory approvals. (Doc. 103 ¶ 278; Doc. 113 ¶ 278.)
If the proposed combination had occurred, it would have been Hamilton’s operation, not Pinnacle’s. Therefore, Hamilton would have been responsible for the staffing decisions of the combined OB/ GYN clinic. (Doc. 106, Ex. Ill at 54, 161; Doc. 106, Ex. MMM at 11; Doc. 106, Ex. FFF at 67.) According to Hamilton’s GEO, discussions regarding the selection of staff physicians for the combined clinic had not occurred. (Doc. 106, Ex. Ill at 54.) Discussions about personnel for the combined operation were limited to staffing patterns, e.g., suggested and budgeted numbers for various positions. (Doc. 113, Ex. 42.) For example, shortly before the execution of the confidentiality agreement between Pinnacle and Hamilton in February 2002, Dr. Kellis met with clinical staff from Hamilton to discuss and to develop possible staffing structures for the combined clinic. (Doc. 113, Ex. 29 at P03039.)
C. The Review of Dr. Bakare’s Standard of Care and Subsequent Corrective Action
The QA Committee is a committee of the Department of Obstetrics and Gynecology that reviews and analyzes quality of care issues to ensure consistent application of appropriate standards of patient care.
The QA Committee reviewed numerous cases of Dr. Bakare for quality of care issues. {See generally Doc. 104, Ex. E.) As early as December 1999, the QA Committee began reviewing several of the cases at issue in the instant matter. (Doc. 104, Ex. E at P02801.) The QA Committee requested responses from Dr. Bakare, but Dr. Bakare generally failed to respond in a timely manner. {See generally Doc. 104, Exs. E, F.) Ultimately, the QA Committee assigned points to a few of Dr. Bakare’s cases. {See, e.g., Doc. 104, Ex. E at P02858-60; Doc. 104, Ex. F at P01062, P01074, P01085, P01093.) In addition to the cases reviewed by the QA Committee, Dr. Kellis independently referred three of Dr. Bakare’s cases to Dr. Bronitsky’s attention. (Doc. 103 ¶ 111; Doc. 113 ¶ 111.) On March 11, 2002, Drs. Kellis and Bronit-sky met with Dr. Bakare to discuss general concerns about his quality of care. (Doc. 103 ¶ 120; Doc. 113 ¶ 120; Doc. 106, Ex. TT at 115.)
On April 1, 2002, Dr. Bronitsky sent a letter to the President of the Medical Staff at Pinnacle Health System requesting his guidance and the guidance of MEC because the QA Committee had identified Dr. Bakare as “falling outside the standard of care” for the OB/GYN Department. (Doc. 105, Ex. L.) On April 23, 2002, MEC formally initiated an investigation into the quality of care issues involving Dr. Bakare, as identified by the QA Committee.
7
MEC directed its attorney to notify Drs. Bakare and Bronitsky that it would address this matter during its May 2002 session and that they were invited to attend, make presentations, and respond to questions. (Doc. 104, Ex. D at P00070,
Dr. Bakare attended the May 28, 2002 meeting of MEC. 9 Dr. Bronitsky also attended and presented Dr. Bakare’s cases, but he neglected to bring the relevant patient charts to the meeting and was unable to respond to specific questions concerning patient care. (Doc. 113, Ex. 1 ¶¶ 41-43.) Dr. Bakare responded to Dr. Bronitsky’s presentation and answered questions. (Doc. 103 ¶ 140; Doc. 113 ¶ 140.) Because many of the physicians on MEC were not OB/GYN physicians, Dr. Moore recommended that MEC retain an expert to review the cases and provide an independent expert opinion. (Doc. 106, Ex. TT at 147-48; Doc. 113, Ex. 1 ¶43.) Following the presentations regarding Dr. Bakare’s cases, MEC directed:
That an obstetrician/gynecologist outside of the Medical Staff be retained to further evaluate the cases in which it is alleged that [Dr. Bakare] exercised poor clinical judgment resulting in the provision of medical care below accepted standards of medical practice in violation of Article IX, Section 1 of the Bylaws.
Upon receipt of the report from the obstetrician/gynecologist in accordance with [the item] above, the Committee will determine whether and to what extent corrective action will be recommended.
(Doc. 104, Ex. D at P00071.)
Dr. Kellis contacted the American College of Obstetrics and Gynecology (“ACOG”) for an expert recommendation. In July 2002, Dr. Kellis sent the ACOG-recommended expert a letter, stating, in part:
I appreciate your willingness to review the accompanying charts. As you are aware, the Medical Staff Executive Committee at Pinnacle Health has become aware of quality of care issues with regards to Dr. Bakare, the physician responsible for the management of these patients. The Medical Staff would appreciate your assessment in each of these cases, of whether or not you believe the care rendered was outside the acceptable standards, and if so, some idea of the seriousness of the “deficiency.”
‡ $ :{c ‡
The following is a brief synopsis of the patient records that are of concern. This is provided, not as an attempt to influence your conclusions about these cases, but rather as a guide to assist you in your review of the records.
(Doc. 105, Ex. O at P00757;
see also
Doc. 105, Ex. O at P00948-P00949; Doc. 106, Ex. OOO ¶¶ 5-6.) Also in July 2002, Dr. Kellis sent a letter by certified mail to Dr. Bakare. The letter provided summaries of the ten cases being reviewed by the expert and invited Dr. Bakare to submit, by Au
On August 27, 2002, Dr. Kellis presented the cases at issue to MEC. 10 (Doc. 103 ¶ 156; Doc. 113 ¶ 156.) To facilitate MEC’s review of the matter, Dr. Kellis prepared a report which included, inter alia, an outline of the cases with responses from Dr. Bakare, if any, and the expert’s analysis. In his report, Dr. Kellis stated: “The Medical Staff Executive Committee is requested to recommend termination of Dr. Bakare’s medical staff privileges and membership to the Pinnacle Health Board of Directors.” 11 (Doc. 113, Ex. 32.) During the meeting, MEC also heard from a member of the QA Committee, who was invited to the meeting to answer any additional questions. (Doc. 104, Ex. D at P00072.)
After hearing the testimony and deliberating for approximately three hours (Doc. 103 ¶ 159; Doc. 113 ¶ 159), MEC determined that Dr. Bakare “failed to meet acceptable standards of clinical practice for an obstetrician-gynecologist.” (Doc. 104, Ex. D at P00072.) MEC also voted to recommend to the Board of Directors that Dr. Bakare’s appointment to the medical staff be revoked. (Doc. 104, Ex. D at P00072.) Finally, MEC voted to “immediately impose upon [Dr. Bakare] a precautionary suspension of all of his clinical privileges to protect the lives of patients and to reduce the substantial likelihood of immediate threat to the health and safety of patients in the Hospitals.” 12 (Doc. 104, Ex. D at P00072.) MEC’s determination and votes were unanimous, with the exception of one abstention. 13 (Doc. 104, Ex. D at P00072.)
On August 28, 2002, MEC’s attorney gave Dr. Bakare notice of the adverse action taken by MEC. (Doc. 103 ¶ 164; Doc. 113 ¶ 164; Doc. 105, Ex. Q at P00795.) The notice informed Dr. Bakare of the precautionary suspension and recommendation to the Board of Directors as well as MEC’s reasons for the corrective
On September 4, 2002, MEC met with Dr. Bakare and his counsel to review the precautionary suspension. During the meeting, Dr. Bakare presented additional information about his quality of care and the ten cases at issue. He also responded to questions posed by members of MEC. Immediately thereafter, MEC modified the terms of Dr. Bakare’s precautionary suspension by allowing Dr. Bakare to exercise privileges under certain conditions. (Doc. 104, Ex. D at P00074-76; see also Doc. 103 ¶ 166; Doc. 113 ¶ 166; Doc. 105, Ex. R at P00802-03.)
On September 5, 2002, Dr. Bakare’s attorney requested that the Fair Hearing Committee (“FHC”) 14 review the corrective action taken by MEC. (Doc. 103 ¶ 175; Doc. 113 ¶ 175; Doc. 105, Ex. U.) FHC met fifteen times between November 5, 2002 and February 13, 2003, absorbed over thirty hours of testimony, and deliberated for approximately four and a half hours. Ultimately, FHC rejected MEC’s determination that Dr. Bakare failed to meet acceptable standards of clinical practice. FHC recommended to MEC that it modify its adverse recommendation to Board of Directors to provide that Dr. Bakare must, as a condition to his continued membership on the medical staff, abide by certain conditions regarding response time for written inquiries and documentation requirements. (Doc. 34, Ex. 12.) FHC succinctly observed: “because of flaws in the process and an insufficient attention to detail, much of the information presented to the MEC was misinformation. Simply put, too many ‘facts’ were wrong.” 15 (Doc. 34, Ex. 12.) However, FHC did “not believe that the MEC acted in bad faith or with malice toward Dr. Bakare during this process. In fact, based on the information presented to it, the [FHC] believe[d] that the MEC acted reasonably and responsibly.” (Doc. 34, Ex. 12.)
On March 18, 2003, MEC reviewed FHC’s report and modified its original determinations and adverse recommendations accordingly. (Doc. 104, Ex. D at P00704-15.) On March 25, 2003, MEC sent its modified determinations and recommendations to the Board of Directors of Pinnacle Health Hospitals and vacated Dr. Bakare’s suspension. (Doc. 104, Ex. D at P00716-18.) On May 19, 2003, the Board of Directors adopted MEC’s modified determinations and recommendations. (Doc. 34, Ex. 18.)
D. Facts Pertinent to Claims Arising from or Related to the Corrective Action
1. Disclosures of Dr. Roger Longen-derfer and Hamilton
Shortly after the imposition of Dr. Ba-kare’s precautionary suspension, Dr. Lon-genderfer communicated with Hamilton’s CEO. He informed her that Dr. Bakare could no longer supervise Hamilton’s midwife and that Hamilton would need to appoint a new supervisor.
16
(Doc. 106, Ex. Ill at 124.) Dr. Longenderfer did not
On August 30, 2002, Hamilton’s Medical Director called Dr. Bakare and terminated his employment with Hamilton. (Doc. 113, Ex. 1 ¶ 64.) In a follow-up letter to Dr. Bakare dated September 6, 2002, Hamilton’s Medical Director stated:
As mentioned on Friday, August 30, 2002, I very much regret learning Harrisburg Hospital has taken action to restrict or revoke your privileges at the Hospital. As you know, your contract with [Hamilton] expired August 31, 2002. At this time I must inform you that [Hamilton] will not be renewing your contract; however, when [Hamilton] has completed a chart review and the issues regarding your privileges at Harrisburg Hospital have been resolved, we may be in a position to consider entering into a new contract.
(Doc. 113, Ex. 27 at HAM0003; see also Doc. 113, Ex. 1 ¶ 65.) 17
2. Disclosures of Dr. Dana Kellis
Three days after Dr. Bakare’s precautionary suspension, Dr. Kellis sent a letter to two midwives — one at Hamilton and one at Dr. Bakare’s office. Each letter stated: “Due to Dr. Bakare not having privileges to work within Pinnacle Health Hospitals, we are asking you to provide us with documentation of a new supervising physician as well as a copy of your new collaborative agreement.” (Doc. 113, Exs.19, 45.)
3. Disclosures of Dr. Barry B. Moore
Shortly after MEC imposed the precautionary suspension on Dr. Bakare, Dr. Moore participated in a discussion, in an operating room lounge, with approximately five nurses, including Kimberly A. Dodson (“Nurse Dodson”). 18 (Doc. 106, Ex. GGG at 22; Doc. 113, Ex. 38.) According to Nurse Dodson, one of the nurses remarked that Dr. Moore appeared to be tired. Dr. Moore replied that he was tired because he was involved with an executive committee that was investigating surgeons — a heart surgeon and an OB/GYN. Although the nurses quickly guessed the name of the heart surgeon, they could not name the OB/GYN. Dr. Moore hinted: “Do the initials A.B. mean anything?” When the nurses still did not know the name of the OB/GYN, Dr. Moore informed them that it was Dr. Bakare. He indicated that the investigation was for substandard care of his OB/GYN patients and was completely unrelated to the operating room. (Doc. 113, Ex. 38; see also Doc. 113, Ex. 8 at 7-8, 13-14.) 19 According to Nurse Dodson, Dr. Moore did not inform the nurses that Dr. Bakare had been suspended. (Doc. 106, Ex. YY at 15.) Subsequently, Nurse Dodson told only her husband about the conversation in the operating room lounge and her opinion that Dr. Bakare is a good surgeon was unaffected by Dr. Moore’s statements. (Doc. 106, Ex. YY at 8-9, Ills.)
Upon learning of Dr. Moore’s comments in the operating room lounge, Dr. Bakare became embarrassed and has ostensibly experienced continuing humiliation, an
4. Moonlighting
Prior to his precautionary suspension, Dr. Bakare participated in the hospital coverage arrangement (also referred to as “Moonlighting”) for the WOHC. Moonlighting is the nighttime and weekend on-call schedule of labor and delivery coverage for WOHC patients who deliver at Harrisburg Hospital. (Doc. 103 ¶¶213, 216; Doc. 113 ¶¶ 213, 216.) According to Dr. Bakare, every member of the OB/GYN department had an opportunity to participate in the moonlighting rotation, 20 but there was no written policy or understanding regarding the frequency of participation: “You submitted your name and the days of the month when you were available to work and whoever was making the schedule would plug it in. You had no way of knowing whether you would get one day a month, two days a month, or no day at all.” (Doc. 106, Ex. TT at 143-44.) The Medical Director of the WOHC was in charge of the moonlighting schedule. (Doc. 106, Ex. TT at 144.) In a letter dated September 2, 2003, the Medical Director informed Dr. Bakare that “[e]ffec-tive immediately, as per recommendations of Pinnacle Health Hospital administration, you will no longer be a moonlighter physician for [the WOHC].” 21 (Doc. 34, Ex. 22.)
E. Procedural History
On July 1, 2003, Dr. Bakare commenced the instant action. (Doc. 1.) Subsequent to the court’s ruling on defendants’ motions to dismiss (see Doc. 31), Dr. Bakare filed an amended complaint on December 5, 2003 (Doc. 33) and a second amended complaint (Doc. 36) on January 7, 2004. 22 Count I of the second amended complaint is an antitrust claim alleging violations of sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1-2, and seeking treble damages pursuant to section 4 of the Clayton Act, 15 U.S.C. § 15. 23 Counts II through IV allege state law claims of tortious interference with contract, breach of contract, and defamation.
Defendants Pinnacle Health System, Pinnacle Health Hospitals, and Drs. Lon-genderfer, Moore, Kellis, Bronitsky, and Evans
24
filed motions for summary judgment (Docs.93-97) on all of Dr. Bakare’s claims and seek immunity from money damages under the Health Care Quality Improvement Act, 42 U.S.C. §§ 11101— 11152, and the Pennsylvania Peer Review Protection Act, 63 Pa. Stat. AnN. §§ 425.1-.4.
25
The parties have fully briefed the
II. Standard of Review
Through summary adjudication the court may dispose of those claims that do not present a “genuine issue as to any material fact,” and for which a jury trial would be an empty and unnecessary formality.
See
Fed.R.CivP. 56(c). It places the burden on the non-moving party to adduce “affirmative evidence, beyond the allegations of the pleadings,” in support of its right to relief.
Pappas v. City of Lebanon,
III. Discussion
Defendants contend that they are entitled to immunity from money damages under the Health Care Quality Improvement Act, 42 U.S.C. §§ 11101-11152, and the Pennsylvania Peer Review Protection Act, 63 Pa. Stat. Ann. §§ 425.1-.4. Defendants also assert that they are entitled to summary judgment on plaintiffs antitrust, tortious interference with contract, breach of contract, and defamation claims. The court will address these issues seriatim.
A. Federal and State Peer Review Immunity
Congress enacted the Health Care Quality Improvement Act (“HCQIA” or “the Act”) “to improve the quality of medical care by encouraging physicians to identify and discipline physicians who are incompetent or who engage in unprofessional behavior” and “to deter antitrust suits by disciplined physicians.”
Mathews v. Lancaster Gen. Hosp.,
(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).
Id.
§ 11112(a). The Act includes a presumption that a professional review action meets the above-quoted standards for immunity “unless the presumption is rebutted by a preponderance of the evidence.”
1. Reasonable Belief that the Action Furthered Quality Health Care
The court finds that Dr. Bakare has failed to adduce any evidence from which a jury could reasonably conclude that MEC’s corrective action 26 against him was not taken “in the reasonable belief that the action was in the furtherance of quality health care.” 42 U.S.C. § 11112(a)(1). MEC based its decision, in part, on the QA Committee’s findings of substandard care, which the QA Committee had evaluated over a significant period of time. The QA Committee’s concerns were then corroborated by an independent OB/GYN expert who concluded that “beyond a reasonable degree of medical certainty [Dr. Bakare’s] medical management falls below the established standards.” (Doc. 105, Ex. 0 at P00748-P00752.) Prior to rendering its initial decision, MEC also questioned a member of the QA Committee who was familiar with the cases at issue. Based upon all of this information, MEC’s initial decision was reasonable. Indeed, Dr. Ba-kare testified at his deposition that “if I as a physician were sitting on the MEC” and listened to the information presented during the August 27, 2002 meeting, “I would personally vote that the doctor should never be allowed to practice anywhere in the world.” (Doc. 106, Ex. TTT at 146.)
Dr. Bakare’s argument that HCQIA immunity does not apply because Dr. Kellis had anticompetitive motives is unavailing. First, Dr. Bakare has not produced any evidence that anticompetitive considerations entered into MEC’s decision-making process. Moreover, “[assertions of bad faith or anticompetitive motives are irrelevant to the question of whether a decision was taken in a reasonable belief that it would further quality health care. Instead, the court must con
For these reasons, the court finds that no reasonable jury would conclude that MEC did not act with the “reasonable belief that the action was in the furtherance of quality health care.” 42 U.S.C. § 11112(a)(1).
2. Reasonable Effort to Obtain the Facts
The court also finds that Dr. Ba-kare has not overcome the presumption that MEC undertook “reasonable efforts to obtain the facts” before taking action. 42 U.S.C. § 11112(a)(2). The evidence demonstrates that Dr. Bakare’s quality of care was originally questioned by the QA. Committee, comprised of members in the same specialty as Dr. Bakare. The QA Committee reviewed Dr. Bakare’s cases and assigned points to some of them.
27
MEC acted on a request from the Chairman of the OB/GYN Department to review Dr. Bakare’s cases for possible corrective action. Rather than relying solely on the review of cases by the QA Committee, and recognizing the need for objective expertise in Dr. Bakare’s specialty, MEC also sought the assessment of an independent OB/GYN expert, recommended by the ACOG. To facilitate this assessment, Dr. Kellis provided the expert with summaries of the cases at issue
28
as well as the patient charts.
29
MEC also permitted Dr.
Given the many efforts of MEC to marshal the facts pertinent to Dr. Bakare’s cases, no reasonable jury could conclude that MEC did not undertake a “reasonable effort to obtain the facts of the matter” before taking corrective action. 42 U.S.C. § 11112(a)(2);
see also Mathews,
3. Adequate Notice and Hearing Procedures
The court also finds that Dr. Ba-kare has not overcome the presumption that MEC took action “after adequate notice and hearing procedures” or “after such other procedures as are fair to the physician under the circumstances.” 42 U.S.C. § 11112(a)(3). Under HCQIA, a peer review board may take corrective action in certain circumstances before notice and a hearing.
See Brader,
In the matter
sub judice,
MEC imposed an immediate, precautionary suspension of Dr. Bakare’s privileges “to protect the lives of patients and to reduce the substantial likelihood of immediate threat to the health and safety of patients.”
31
(Doc. 104, Ex. D at P00072.) The next day, MEC notified Dr. Bakare by letter of the precautionary suspension, the reasons for the suspension, and his right to request a hearing within thirty days, and provided Dr. Bakare with a summary of his hearing rights pursuant to the Medical Staff Bylaws and the Fair Hearing Plan.
32
Within a
This evidence demonstrates that Dr. Ba-kare was afforded the due process contemplated by § 11112(a)(3) of HCQIA. Indeed, that due process ultimately resulted in the rejection of MEC’s principal conclusions. Accordingly, a reasonable jury could not conclude that Dr. Bakare was not provided adequate notice and hearing procedures under HCQIA. 33 See 42 U.S.C. § 11112(a)(3), (b), (c)(2).
4. Reasonable Belief that the Actions Were Warranted
Finally, the court finds that the corrective action against Dr. Bakare “was warranted by the facts known” by MEC. 42 U.S.C. § 11112(a)(4). An independent expert, who reviewed the patient charts, concluded that Dr. Bakare’s care fell below the standard. This conclusion corroborated the findings of the QA Committee. And, unfortunately, Dr. Bakare did not offer a rebuttal despite MEC’s attempts to secure his response to the quality of care issues. Dr. Bakare candidly acknowledged that he would have voted to suspend a physician given the information that was presented to MEC. 34 A reasonable jury, therefore, could not conclude that MEC did not act in the “reasonable belief that the [recommendation and precautionary suspension of his privileges] was warranted by the facts known after reasonable effort to obtain facts.” 42 U.S.C. § 11112(a)(4).
In sum, the court finds that Dr. Bakare has failed to adduce any evidence from which a reasonable jury could conclude that he has overcome, by a preponderance of the evidence, the presumption of compliance with the requirements of § 11112(a). Accordingly, HCQIA immunity applies to the matter sub judice. 35
5. Scope of HCQIA Immunity
A finding that HCQIA immunity applies in the instant matter does not end the court’s analysis. A determination of the extent to which this immunity applies to plaintiffs antitrust, tortious interference with contract, breach of contract, and defamation claims is necessary.
Some, but not all, of Dr. Bakare’s claims for damages are precluded by HCQIA immunity. The following claims for damages clearly arise out of the peer review process, therefore triggering HCQIA immunity: (1) breach of contract claim with respect to the alleged breach of the Medical Staff Bylaws during the peer review process, (2) tortious interference with the Hamilton contract claim, to the extent that Dr. Bakare argues that his precautionary suspension caused Hamilton to terminate the contract, and (3) defamation claims regarding statements made by Dr. Kellis to MEC and FHC.
36
See, e.g., Perez v. Pottstown Mem’l Med. Ctr.,
No. 97-3334,
B. Antitrust Claims
Dr. Bakare asserts antitrust claims
38
against Pinnacle and Drs. Lon-genderfer, Kellis, Bronitsky,
39
and Evans
40
[A]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.
15 U.S.C. § 15. By limiting recovery to those persons injured “by reason of’ an antitrust violation, this provision establishes a standing requirement, mandating demonstration of cognizable antitrust injury.
See Angelico v. Lehigh Valley Hosp., Inc.,
Despite the broad language of the Clayton Act, which arguably would permit redress for injuries of any type, courts have construed these standing requirements much more narrowly.
See, e.g., Healthamerica Pa., Inc. v. Susquehanna Health Sys.,
In the instant case, Dr. Bakare’s loss stems from his precautionary suspension.
41
In an attempt to demonstrate antitrust injury, Dr. Bakare suggests that he was suspended to facilitate the proposed combination between Pinnacle and Hamilton’s OB/GYN services. Dr. Bakare’s suggestion is pure speculation, unsupported by evidence of record. Other than the temporal proximity of his suspension to the preliminary merger discussions between Hamilton and Pinnacle, Dr. Bakare has not
Dr. Bakare argues that the nexus between his suspension and the Pinnacle-Hamilton proposed combination is evidenced by the recognition that “cultural issues” between Pinnacle and Hamilton staff could pose problems for the combination and by virtue of Dr. Kellis’s involvement in both his suspension and the Pinnacle-Hamilton discussions. 44 These arguments are without merit. The possibility of cultural issues arising between professional staff of combining entities is a concern for practically any combination. There is no evidence that Pinnacle, Hamilton, or Dr. Kellis specifically viewed Dr. Bakare, or any other physician, as an obstacle to the combination. Nor is there evidence that any particular staffing decision was integral to the combination. Hamilton, not Pinnacle or Dr. Kellis, would have made the final staffing decisions for the proposed combination and Dr. Bakare offers no evidence that Hamilton had even considered the nature and scope of Dr. Bakare’s individual role in the combined clinics. 45
Assuming
arguendo
that the proposed Pinnacle-Hamilton combination would have violated the antitrust laws, Dr. Bakare proffers no evidence that he was suspended to facilitate the proposed combination.
See Allegheny Gen. Hosp. v. Philip Morris, Inc.,
C. Tortious Interference with Contract 46
Under Pennsylvania law, the elements of a tortious interference with contract claim are:
(1) the existence of a contractual ... relation between the [plaintiff] and a third party;
(2) purposeful action on the part of the defendant, specifically intended to harm the existing relation ...;
(3) the absence of privilege or justification on the part of the defendant; and
(4) the occasioning of actual legal damage as a result of the defendant’s conduct.
CGB Occupational Therapy, Inc. v. RHA Health Servs. Inc.,
(a) the nature of the actor’s conduct,
(b) the actor’s motive,
(c) the interests of the other with which the actor’s conduct interferes,
(d) the interests sought to be advanced by the actor,
(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other,
(f) the proximity or remoteness of the actor’s conduct to the interference[,] and
(g) the relations between the parties.
Nathanson v. Med. Coll, of Pa.,
In the matter sub judice, Dr. Bakare claims that Dr. Longenderfer tor-tiously interfered with his Hamilton contract by advising Hamilton’s CEO that Dr. Bakare could no longer supervise Hamilton’s midwife. Dr. Bakare contends that this communication proximately caused the termination of his contract with Hamilton. 47
The evidence of record demonstrates that Dr. Longenderfer’s limited communication to Hamilton’s CEO was justified. In addition, the record is devoid of any evidence of specific intent to harm Dr. Bakare’s contractual relationship with Hamilton. It was entirely appropriate for Dr. Longenderfer to communicate with Hamilton’s CEO concerning Dr. Bakare’s unavailability because of Dr. Bakare’s role at Hamilton. Indeed, a midwife from Hamilton was required to practice under the supervision of a physician while at Pinnacle. Prior to his precautionary suspension, Dr. Bakare had acted as a supervising physician. Dr. Longenderfer did not reveal any confidential information. He did not provide any specifics regarding Dr. Bakare’s precautionary suspension or MEC’s proceedings. He simply informed Hamilton’s CEO that Hamilton would need to appoint a new supervisor for its midwife. 48 Both Pinnacle and Hamilton clearly had an interest in facilitating the ability of Hamilton’s midwife to practice at Pinnacle. Dr. Longenderfer’s directive was limited, reasonable, and, in fact, necessary. Given the evidence of record, a reasonable jury could not conclude that Dr. Longen-derfer intended to harm Dr. Bakare’s Hamilton contract or that Dr. Longender-fer was not justified in his limited communication to Hamilton’s CEO. Accordingly, the court will grant summary judgment in favor of defendants on the tortious interference with contract claim.
1. Moonlighting
Under Pennsylvania law, “the test for enforceability of an agreement is whether both parties have manifested an intention to be bound by its terms and whether the
terms are sufficiently definite to be specifically enforced.’’ USA Mach. Corp. v. CSC, Ltd.,
In the matter
sub judice,
Dr. Ba-kare contends that there was either an express or an implied contract regarding moonlighting. However, Dr. Bakare offers no evidence to support these contentions. There is no writing specifying terms or evidencing an agreement on the issue of moonlighting.
50
Although Dr. Bakare was
eligible
to be assigned to the on-call list because he had staff privileges at the hospital, nothing in the record suggests that this assignment was contractually
required.
Indeed, Dr. Bakare acknowledged that he could be assigned “one day a month, two days a month, or no day at all.”
See, e.g., M. Leff Radio Parts, Inc. v. Mattel, Inc.,
Dr. Bakare fails to present sufficient evidence to reach the jury on the breach of contract claim with respect to moonlighting. Accordingly, the court will grant summary judgment in favor of defendant Pinnacle Health Hospitals on this claim.
2. Breach of Confidentiality
As a threshold matter, the court notes that Dr. Bakare did not plead a breach of contract claim with respect to confidentiality.
(See
Doc. 36 ¶¶ 149-55.) The only references to the improper disclosure of confidential information are found in Dr. Bakare’s tortious interference with contract and defamation claims.
(See
Doc. 36 ¶¶ 146, 157.) The breach of contract claim regarding confidentiality first came to light in Dr. Bakare’s brief in opposition to defendants’ motions for summary judgment.
51
(See
Doc. 112 at 58-59.) As previously noted, a party is not permitted to raise new claims in opposition to a Rule 56 motion.
See, e.g., Laurie v. Nat’l Passenger R.R. Corp.,
Even if Dr. Bakare had properly raised a breach of contract claim based upon the improper disclosure of eon-
In the matter sub judice, there is no clear evidence of an implied confidentiality term. Dr. Bakare proffers no evidence that the parties discussed, intended, or even contemplated, such a term. He relies solely on the confidentiality policy expressed during MEC proceedings by MEC members. But his reliance is misplaced because no such policy is identified in or implicated by Dr. Bakare’s contract with Pinnacle. 54 MEC’s confidentiality policy is irrelevant to Dr. Bakare’s contract claim. Accordingly, the court finds that the parties did not clearly intend to be bound by a confidentiality term. Therefore, the court will not imply such a term in the parties’ contract and will grant summary judgment in favor of defendant Pinnacle Health Hospitals on this claim.
Under Pennsylvania law, a claim of defamation requires the plaintiff to establish,
inter alia,
the defamatory nature of the communication, publication by the defendant, understanding by both the defendant and recipients of its defamatory nature, special harm resulting from the publication, and abuse of a conditionally privileged occasion. 42 Pa. Cons.Stat. § 8343(a);
see also Zugarek v. S. Tioga Sch. Dist.,
Truth is an absolute defense to a defamation claim.
See
42 Pa. Cons.Stat. § 8343(b);
Simms v. Exeter Architectural Prods., Inc.,
A plaintiff need not prove special harm, i.e., pecuniary loss, if the communication is defamation
per se. Franklin Prescriptions, Inc. v. N.Y. Times Co.,
1. Dr. Roger Longenderfer
Dr. Bakare bases his defamation claim against Dr. Longenderfer on Dr. Longenderfer’s conversation with Hamilton’s CEO. After Dr. Bakare’s suspension, Dr. Longenderfer informed her that Dr. Bakare could no longer supervise Hamilton’s midwife and that Hamilton would need to identify a new supervisor. These statements were clearly true
55
and, therefore, cannot be the basis for a defamation claim.
See
42 Pa. Cons.Stat. § 8343(b);
Simms,
In addition, the court finds that Dr. Longenderfer’s statements were conditionally privileged and that a reasonable jury could not conclude that Dr. Longen-derfer abused that privilege. As previously discussed in the context of Dr. Bakare’s tortious interference with contract claim,
2. Dr. Barry B. Moore
Dr. Bakare bases his defamation claim against Dr. Moore on Dr. Moore’s conversation with nurses in the operating room lounge. The parties present different accounts of Dr. Moore’s communication. Dr. Moore contends that his statements were true and therefore cannot be the basis for a defamation claim. He asserts that he merely responded to the nurses’ questions and informed them that Dr. Bakare’s temporary suspension related to quality of care. In contrast, Dr. Bakare relies upon Nurse Dodson’s account. According to Nurse Dodson, Dr. Moore informed thé nurses that Dr. Bakare was under investigation for rendering inadequate care. Dr. Bakare also relies upon the declaration of his former attorney, Re-nardo L. Hicks, Esquire. Attorney Hicks asserts that Dr. Moore admitted to him that he told the nurses in the operating room lounge that Dr. Bakare provided bad care.
Clearly, these are factual disputes which must be resolved by a jury. Given the evidence of record, a reasonable jury could conclude that Dr. Moore informed the nurses that Dr. Bakare provided bad care and that this statement was false.
56
If the jury so concludes, this communication constitutes defamation
per se
because it ascribes to Dr. Bakare conduct that would adversely affect him in his profession.
See Franklin Prescriptions,
IV. Conclusion
For the reasons set forth above, the motions for summary judgment are granted in part and denied in part. An appropriate order will issue.
ORDER
AND NOW, this 24th day of August, 2006, upon consideration of defendants’
1. The motion for summary judgment (Doc. 93) on immunity under the Health Care Quality Improvement Act, 42 U.S.C. §§ 11101-11152, is GRANTED in favor of defendants. 59
2. The motion for summary judgment (Doc. 94) on plaintiffs antitrust claims is GRANTED in favor of defendants Pinnacle Health System, Pinnacle Health Hospitals, Roger Longenderfer, M.D., Dana Kellis, M.D., Carl Bronitsky, M.D., and David J. Evans, M.D.
3. The motion for summary judgment (Doc. 95) on plaintiffs tortious interference with contract claims is GRANTED in favor of defendants Pinnacle Health System, Pinnacle Health Hospitals, Roger Longender-fer, M.D., Dana Kellis, M.D., Carl Bronitsky, M.D., and David J. Evans, M.D.
4. The motion for summary judgment (Doc. 96) on plaintiffs breach of contract claims is GRANTED in favor of defendant Pinnacle Health Hospitals.
5. The motion for summary judgment (Doc. 97) on plaintiffs defamation claims is GRANTED with respect to these claims against defendants Roger Longenderfer, M.D. and Dana Kellis, M.D. The motion is otherwise DENIED.
6. The Clerk of Court is directed to defer the entry of judgment until the conclusion of this case.
7. Defendants’ motion to strike portions of plaintiffs affidavit (Doc. 123) is DENIED as moot.
Notes
. In accordance with the standard of review for a motion for summary judgment, the court will present the facts in the light most favorable to plaintiff, the non-moving party. See infra Part II.
. See discussion infra Part I.C regarding Dr. Bakare's precautionary suspension on August 27, 2002 and subsequent modification granting conditional privileges.
. On November 20, 2001, Dr. Bakare was reappointed to the medical staff of Pinnacle Health Hospitals through November 19, 2003. (Doc. 103 ¶ 46; Doc. 113 ¶ 46.)
. See discussion infra Part I.D.l regarding the termination of Dr. Bakare's contract with Hamilton on August 30, 2002.
. The executive summary presented to Pinnacle's Board regarding the proposal indicated that "[f]or some time management has been exploring ways to reduce the operating losses from indigent care clinics operated by Pinnacle Health.” (Doc. 104, Ex. C at P00229.) Pinnacle was losing approximately $2 million per year on its OB/GYN services. (Doc. 105, Ex. EE at HAM0059.)
. In his response to defendants’ statement of undisputed facts, Dr. Bakare denied the proffered reasons for Hamilton's termination of negotiations and stated instead that "Hamilton chose to discontinue discussions because Pinnacle refused to subsidize the combined clinic in the manner authorized by Pinnacle's Board of Directors." (Doc. 113 ¶274.) However, Dr. Bakare did not reference any part of the record that supports his assertion.
See
L.R. 56.1 ("Statements of material facts in support of, or in opposition to, a motion shall include references to the parts of the record that support the statements."). Therefore, de~ fendants' corresponding statement, which referenced the parts of the record supporting the statement, is deemed admitted.
See id.
This denial is but one example, of many, where plaintiff does not offer record support for his conclusoty statements.
(See, e.g.,
Doc. 113
n
121, 148, 150, 233, 255, 272.)
See Elmore v. Clarion Univ. of Pa.,
. MEC is a committee of Pinnacle Health Hospitals' medical staff charged, in part, with ensuring competent clinical performance for all members with clinical privileges. (Doc. 113, Ex. 16 art. VI, § 1(A), (B)(ll)). Not only may MEC recommend the "reduction, suspension or revocation of clinical privileges” of a practitioner, but it may also suspend all or a portion of the clinical privileges of a practitioner if the practitioner's “conduct requires that immediate action be taken to protect the life of any patient(s) or to reduce the substantial likelihood of immediate threat to the health or safety of any patient.” (Doc. 113, Ex. 16 art. IX, §§ 4(A)(6), 5(A)).
. Dr. Bakare denies receiving this letter. He contends that MEC's attorney called him one week before MEC's May 2002 session to inform him of the meeting and its subject matter. According to Dr. Bakare, the attorney told him that there was no requirement that he attend the meeting, but that he was invited to attend. (Doc. 113 ¶ 138; Doc. 113, Ex. 1 ¶ 40.)
. During MEC meetings, either the chair or another member would remind the other members of the requirement of strict confidentiality of MEC proceedings. (Doc. 113, Ex. 10 at 22; Doc. 178, Ex. D at 56.) This policy of confidentiality is not reflected in Pinnacle Health Hospitals' Medical Staff Bylaws. (See Doc. 113, Ex. 16.)
. Twenty-eight members of MEC, including Drs. Kellis and Bronitsky were present at the August 27, 2002 meeting. (Doc. 104, Ex. D at P00072.)
. Dr. Kellis’s report did not recommend that MEC impose an immediate, precautionary suspension. (Doc. 113, Ex. 32.)
. The Pinnacle Health Hospitals’ Medical Staff Bylaws require that the affected practitioner be notified after a precautionary suspension. MEC must review the precautionary suspension as soon as practicable, but not more than seven days after imposition. If MEC does not immediately terminate the precautionary suspension or cease all corrective action, the affected practitioner is entitled to the rights as set forth in the Fair Hearing Plan. (Doc. 113, Ex. 16 art. IX, § 5.)
. Other than Dr. Kellis, none of the MEC members who voted for Dr. Bakare’s precautionary suspension had any involvement in the negotiations between Pinnacle and Hamilton regarding the potential combination of their OB/GYN services. (Doc. 103 ¶ 283; Doc. 113 ¶ 283.)
. FHC consisted of five medical doctors appointed by the President of the Medical Staff. (Doc. 103 ¶ 176; Doc. 113 ¶ 176; Doc. 34, Ex. 12.)
. FHC outlined the incorrect facts, if any, for each case and why it determined that Dr. Bakare’s management of a case did not fall below the standard of care. (Doc. 34, Ex. 12.)
. Hamilton’s CEO also received a letter to this effect from Pinnacle Health System. (See Doc. 106, Ex. Ill at 23.)
. Dr. Bakare contends, without support, that Hamilton terminated his contract because "Hamilton also did not want [me] to participate in the planned combined clinic.” (Doc. 113 ¶ 233; Doc. 103 ¶ 233.) See supra note 6.
. The identities of the other nurses in the operating room are unknown.
. Dr. Moore allegedly informed Dr. Bakare's former attorney that he had told people at Pinnacle that Dr. Bakare provided bad care. (Doc. 113, Ex. 7 at 14-15, 19.)
. Dr. Longenderfer indicated that all physicians who have staff privileges at the hospital are eligible for the on-call list. (Doc. 113, Ex. 2 at 96-97.)
. The decision to remove Dr. Bakare from the moonlighting schedule was a joint decision between the Medical Director and Dr. Kellis. (Doc. 106, Ex. ZZ at 57-62.)
. By order of April 5, 2005, the court denied Dr. Bakare's motion for leave to file a third amended complaint. (Doc.81).
. Because Pinnacle and Hamilton have ceased negotiations to combine their OB/GYN clinics, Dr. Bakare's request for injunctive relief is moot.
. During oral argument on the motions for summary judgment, Dr. Bakare acknowledged the abandonment of all claims against Dr. Evans.
See Jordan v. Stanziola,
. Defendants also filed a motion (Doc. 123) to strike portions of Dr. Bakare's affidavit opposing the motions for summary judgment. Because the challenged portions of the affida
. Dr. Bakare argues that numerous activities surrounding the action taken by MEC do not comply with HCQIA requirements. However, professional review
activity,
unlike a professional review
action,
is not subject to the requirements of § 11112(a).
See Mathews,
[A]n 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.
Id.
§ 11151(9);
see also Mathews,
. Dr. Bakare argues that alleged deficiencies in the QA Committee's process of reviewing his cases and assigning points removes HCQIA immunity. However, the QA Committee’s actions need not satisfy HCQIA requirements of 42 U.S.C. § 11112(a) because they do not constitute professional review actions as defined by HCQIA. See supra note 26.
. Dr. Kellis clearly advised the expert that the case summaries were intended to assist the expert and not to influence his conclusions in any fashion. (See Doc. 105, Ex. O at P00757.)
. Dr. Bakare contends that the appropriateness of his professional performance was readily apparent from the patient charts and that MEC's acceptance of facts contradicted by the patient charts
ipso facto
demonstrates an unreasonable effort on the part of MEC. For example, Dr. Bakare highlights an assertion in Dr. Kellis's report to MEC that Dr. Bakare did not respond to a call to see a patient for six hours — an assertion contradicted by the patient’s chart which reveals that he responded within twenty-five minutes. This isolated factual discrepancy does not negate MEC’s reasonable efforts to obtain the facts. MEC sent the relevant patient charts to an independent expert who reviewed the cases
. Although Dr. Bakare did not accept delivery of Dr. Kellis’s letter, he nevertheless acknowledges that he would not have responded to it even if he had received it. (See Doc. 106, Ex. TT at 191.)
. The court finds that, given the independent expert's assessment of Dr. Bakare's cases, MEC reasonably believed that the precautionary suspension was necessary to protect against "imminent danger to the health of any individual.” 42 U.S.C. § 11112(c)(2);
see also Lee
v.
Trinity Lutheran Hosp.,
.The letter also informed Dr. Bakare that MEC recommended to the Board of Directors that his appointment to the medical staff be revoked. This letter satisfied the safe harbor provision for a "Notice of Proposed Action,” which requires:
The physician has been given notice stating—
(A)(i) that a professional review action has been proposed to be taken against the physician,
(ii) reasons for the proposed action,
(B)(i) that the physician has the right to request a hearing on the proposed action,
(ii) any time limit (of not less than 30 days) within which to request such a hearing, and (C) a summary of the rights in the hearing under paragraph (3).
42 U.S.C. § 11112(b)(1); see also Mathews,87 F.3d at 638 n. 10. Dr. Bakare does not contest the adequacy of the notice or the conduct of the hearing. See 42 U.S.C. § 11112(b)(2), (3).
.Dr. Bakare argues that HCQIA immunity is inappropriate because MEC allegedly failed to follow the procedures set forth in the Medical Staff Bylaws (e.g., MEC did not provide Dr. Bakare with the expert's report before taking the corrective action on August 27, 2002). The court need not determine whether MEC followed the Bylaws. HCQIA immunity attaches when the reviewing body satisfies the requirements under HCQIA, regardless of its own policies and procedures. The evidence of record reveals that Dr. Bakare has not overcome the presumption that MEC provided adequate due process within the ambit of HCQIA.
. The court's discussion regarding § 11112(a)(1) — reasonable belief that the action furthered quality health care — also supports this conclusion regarding § 111 12(a)(4). See supra Part III.A.l.
. In light of this finding that defendants are immune from money damages under HCQIA, it is unnecessary for the court to address the issue of immunity under the Pennsylvania Peer Review Protection Act.
.The court notes that, regardless of whether HCQIA immunity applies, Dr. Bakare waived his defamation claim against Dr. Kellis. During oral argument on the motions for summary judgment, Dr. Bakare abandoned this claim with respect to the letters that Dr. Kel-lis sent to two nurse midwives.
See Jordan v. Stanziola,
. See infra Parts III.B, III.C, III.E.l.
. Dr. Bakare claims violations of Sections 1 and 2 of the Sherman Act. Section 1 provides that "[ejveiy contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.” 15 U.S.C. § 1. Section 2 provides that "[e]very person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States ... shall be deemed guilty of [antitrust violations].” Id. § 2.
. During oral argument on the motions for summary judgment, counsel for Dr. Bakare indicated that plaintiff does not intend to pursue any antitrust claims against Dr. Bronit-sky.
See Jordan v. Stanziola,
. See supra note 24.
. Dr. Baleare argues that he also "has standing to seek redress for the harm to competition that
would have resulted
if Pinnacle’s plans to combine the clinics had succeeded” because the combination allegedly would have resulted in the "diminution of the quality of care and choices of physicians.” (Doc. 158 at 6 (emphasis added)). The court is unpersuaded. First, Section 4 of the Clayton Act requires actual injury to the plaintiff seeking damages.
See
15 U.S.C. § 15 ("[A]ny person who
shall be injured
in his business or property ... shall recover threefold the
damages by him sustained
...(emphasis added));
see also
ABA Section of Antitrust Law, Antitrust Law Developments 839-41(5th ed. 2002) ("All plaintiffs seeking damages under Section 4 must first establish the existence of 'injury' to themselves, also referred to as 'impact' or 'fact of damage.' ”). Moreover, the cases cited by Dr. Bakare for this argument are easily distinguishable from the instant case. They involve either (1) an existing, not potential, agreement between hospitals and an anesthesiology group, (2) a request only for injunctive relief, as opposed to damages, or (3) harm to competition that had allegedly already occurred (i.e., not potential harm).
See Morales-Villalobos v. Garcia-Llorens,
. Notably, Dr. Kellis's report to MEC did not recommend an immediate, precautionary suspension of Dr. Bakare.
. See supra Part III.A.
. Dr. Bakare also argues that the exclusive emergency room coverage proposal and Hamilton’s desire to increase market share demonstrate that his removal from the market would facilitate the proposed combination. (See Doc. 178 at 4-6.) These arguments are unpersuasive. The evidence cited by Dr. Ba-kare is merely indicative of the existence of merger discussions. It does not establish a causal connection between these discussions and Dr. Bakare's precautionary suspension.
. Dr. Bakare attempts to connect the merger discussions with his suspension based upon a meeting between Pinnacle physicians, including Dr. Kellis, and Hamilton’s midwife during which the parties discussed staffing. (See Doc. 178 at 2-4.) This purported evidence of a causal link is unavailing because the discussion involved the number of physicians necessary for the combined clinic, not the names of the physicians. (Doc. 178, Ex. A at 24-25.) Although Hamilton’s midwife ostensibly understood that only the Pinnacle physicians would be included in a combined clinic (see Doc. 178, Ex. A at 25-26), this evidence, even if admissible at trial, does not support Dr. Bakare's contention that he was suspended to facilitate the proposed combination. The discussion involved only Pinnacle physicians. Hamilton physicians, who would have made the staffing decisions, did not participate. Moreover, there is no indication that Dr. Ba-kare's individual status was even discussed, let alone affected this preliminary personnel planning.
. In his second amended complaint, Dr. Ba-kare raises tortious interference with contract claims regarding two distinct contracts — one with Pinnacle and one with Hamilton. (Doc. 36 ¶¶ 144-48.) Dr. Bakare concedes that the tortious interference with contract claim relating to Pinnacle is without merit. (See Doc. 158 at 18-19.) Accordingly, the court will grant summary judgment in favor of defendants on this claim. In his brief in opposition to defendants’ motion for summary judgment, Dr. Bakare raised a new tortious interference with contract claim relating to a contract with the University of Pennsylvania School of Nursing. (See Doc. 112 at 63-64.) The court will not permit Dr. Bakare to raise a new claim in the context of an opposition brief. See, e.g.,
Laurie v. Nat’l Passenger R.R. Corp.,
. Dr. Bakare also claims that defendants tor-tiously interfered with his Hamilton contract by suspending his privileges. However, HCQIA immunizes defendants from this claim, which arises out of MEC’s professional review action. See supra Part III.A.5. Dr. Bakare also appears to base this claim on the alleged "concerted action between Hamilton and Pinnacle to remove [him] from the relevant market.” (Doc. 112 at 61.) As discussed supra, however, Dr. Bakare proffers no evidence that Hamilton or Pinnacle discussed his specific employment status when negotiating the proposed Pinnacle-Hamilton combination. See supra Part III.B. Hence, Dr. Bakare's unsupported speculation that Hamilton and Pinnacle conspired to remove him from the market cannot withstand summary judgment.
. See 49 Pa Code § 18.5(a) ("A midwife may not engage in midwifery practice without having entered into a collaborative agreement”); id. § 18.1 ("Collaborative agreement — A signed written agreement between a midwife and a collaborating physician ....”); id. ("Collaborating physician — A medical or osteopathic medical doctor who has hospital privileges in obstetrics, gynecology or pediatrics _” (emphasis added)). Surprisingly, Dr. Bakare denies defendants' assertion that he could not supervise Hamilton's midwife during his precautionary suspension. (Doc. 113 ¶ 193; Doc. 103 ¶ 193.) In support of this denial, Dr. Bakare simply indicates that other arrangements had been made for supervision of the midwife. (Doc. 113 ¶ 193.) This is a transparent deflection, not a properly supported denial.
. Under HCQIA, Pinnacle Health Hospitals — the only defendant named in Dr. Ba-kare’s breach of contract claim — is immune with respect to the alleged breach of the Medical Staff Bylaws as this claim arises out of the professional review action. See supra Part III.A. 5.
. Dr. Bakare points to a provision of the Medical Staff Bylaws, which states that each member of the medical staff will "[ajssist the Hospital in fulfilling its responsibilities for providing emergency and charitable care.” (Doc. 113, Ex. 16 art. II, § 6(B)), for the proposition that he had an express agreement to perform moonlighting. This provision, however, simply describes Dr. Bakare's duties and responsibilities as a member of the medical staff. It does not contain any specific terms that would obligate Pinnacle to assign him to the on-call list.
. Dr. Bakare attempted to add this claim in a third amended complaint. (See Doc. 66, Ex. ¶ 124.a.) However, the court denied Dr. Bakare's motion for leave to file a third amended complaint. (See Doc. 81.)
. Dr. Bakare alleges that the breaches occurred when: (1) Dr. Moore communicated the existence and substance of MEC proceedings to nurses in the operating room lounge, (2) Dr. Longenderfer told Hamilton's CEO that Dr. Bakare could no longer supervise Hamilton's midwife and that Hamilton would need to identify a new supervisor, and (3) Dr. Kellis wrote letters to two midwives informing them that Dr. Bakare no longer had privileges at Pinnacle Health Hospitals and that they would need to make arrangements with a new supervising physician.
. Dr. Bakare offers no cases, and the court finds none, that establish an implied confidentiality term under Pennsylvania common law. Notably, Pennsylvania law governing the content of medical staff by laws — the contract between a hospital and its physicians — does not require a confidentiality term. See 28 Pa.Code § 107.12.
. Dr. Bakare also argues that the Pennsylvania Peer Review Protection Act mandates confidentiality.
See
63 Pa. Stat. Ann. § 425.4 ("The proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action....”). It is undisputed, however, that this state statute does not confer a private cause of action. The statute "seeks to foster the greatest candor and frank discussion at medical review committee meetings.... [TJhrough grants of immunity and confidentiality the state hopes to encourage peer evaluation of health care provided so as to (1) improve the quality of care rendered; (2) reduce morbidity and mortality; and (3) keep within reasonable bounds the costs of health care.”
McClellan v. Health Maint. Org. of Pa.,
. See supra note 48.
. Dr. Moore also argues that his communication was conditionally privileged. This privilege argument, however, is based upon Dr. Moore's disputed account of the communication with the nurses. A jury must resolve this factual dispute regarding the nature and extent of Dr. Moore's communication.
. When the court ordered supplemental briefing on Dr. Bakare’s defamation claim against Dr. Moore, it directed the parties to address whether causation was an appropriate issue for summary disposition. (See Doc. 177 n. 1.) In light of the disputed facts surrounding this claim, the court considers this issue to be moot.
. Dr. Bakare's defamation claim against Pinnacle Health Hospitals and Pinnacle Health System is based on vicarious liability. These defendants do not dispute that Dr. Moore was an employee or was acting within the scope of his employment. Therefore, the court will also deny summary judgment on the defamation claim against Pinnacle Health Hospitals and Pinnacle Health System.
. By granting immunity under the Health Care Quality Improvement Act, it is unnecessary for the court to address the issue of immunity under the Pennsylvania Peer Review Protection Act.