Linda FREILICH, M.D., P.A.; Linda Freilich, M.D., Plaintiffs-Appellants, v. UPPER CHESAPEAKE HEALTH, INCORPORATED, formerly known as Harford Memorial Hospital; Board of Directors of Upper Chesapeake Health, Incorporated, formerly known as Harford Memorial Hospital; Cecilio T. Camacho, M.D., as a Director and individually; Joan P. Edwards, M.D., as a Director and individually; Scott S. Haswell, M.D., as a Director and individually; Shirley S. Klein, as a Director and individually; James Lambdin, as a Director and individually; Anthony J. Meoli, as a Director and individually; Lyle E. Sheldon, as a Director and individually; David F. Gonano, as a Director and individually; Sherif H. Osman, M.D., as a Director and individually; Roger E. Schneider, M.D., as a Director and individually; Diane K. Ford, as a Director and individually; H. William Acker, as a Director and individually; Randall Worthington, Sr., as a Director and individually; United States of America; State of Maryland, Defendants-Appellees.
No. 01-1890
United States Court of Appeals, Fourth Circuit
Decided Dec. 13, 2002
Argued Oct. 29, 2002
313 F.3d 205
III.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
Before WILKINSON, Chief Judge, and WIDENER and KING, Circuit Judges.
Affirmed by published opinion. Chief Judge WILKINSON wrote the opinion, in which Judge WIDENER and Judge KING joined.
OPINION
WILKINSON, Chief Judge.
Dr. Linda Freilich is a physician. Harford Memorial Hospital decided to terminate Dr. Freilich‘s medical staff privileges after undertaking an extensive review of her application for reappointment. Dr. Freilich then filed a complaint challenging the constitutionality of the federal statute granting immunity to peer review participants and the Maryland physician credentialing statutes. In addition, Dr. Freilich alleged violations of both the Americans with Disabilities Act and the Rehabilitation Act and made various other common law claims. Dr. Freilich‘s complaint is an at-
I.
Dr. Linda Freilich is a Board Certified Internist and Nephrologist who maintained unrestricted hospital privileges at defendant Harford Memorial Hospital (HMH), a private, non-profit hospital, from 1982 until April 12, 2000. During her tenure at HMH, Dr. Freilich states she advocated the rights of her patients in order to improve their quality of care. Specifically, Dr. Freilich complained that the outsourcing of quality assurance and oversight services for dialysis patients led to an improper standard of care.
Maryland state regulations require physicians to apply for reappointment every two years. See
In July, 1998, Dr. Freilich applied for reappointment to HMH. Her application went through several layers of review, passing before the HMH Credentials Committee, the Medical Executive Committee, and the Appellate Review Committee. Further, Dr. Freilich received a hearing before the Ad Hoc Hearing Committee. Although the different committees disagreed on whether to accept or reject Dr. Freilich‘s application, on April 11, 2000, HMH‘s Board of Directors voted to deny Dr. Freilich‘s application and terminated her medical privileges. In a letter to Dr. Freilich explaining the basis for its decision, the Board quoted the “ethics and behavior” language in the HMH Bylaws.
On December 11, 2000, Dr. Freilich filed a 14-count, 76-page complaint against HMH and fourteen individuals who were involved in her peer review (collectively the “hospital defendants“), the State of Maryland, and the United States. The complaint alleged that HMH and its Board of Directors denied Dr. Freilich‘s application for reappointment because she did nothing more than advocate the rights of her patients. Specifically, Dr. Freilich alleged that the Health Care Quality Improvement Act (HCQIA),
In an extensive opinion, the district court dismissed the federal claims with prejudice and the state law claims without
II.
Dr. Freilich brings several constitutional challenges to the Health Care Quality Improvement Act,
A.
We first address Dr. Freilich‘s due process and equal protection challenges to the HCQIA. Dr. Freilich first alleges that the HCQIA violates the Fifth Amendment because it “authorizes and encourages the Defendants [to] act irresponsibly in matters of credentialing, reappointment to the hospital staff, and wrongful denial of hospital privileges....” 1 Because the HCQIA does not burden any fundamental right or draw distinctions based on any suspect criteria, it is subject only to rational basis review. Rational basis review is “a paradigm of judicial restraint,” FCC v. Beach Commc‘ns, Inc., 508 U.S. 307, 314, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993), which prohibits us from “sift[ing] as a super-legislature to judge the wisdom or desirability of legislative policy determinations.” City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976) (per curiam). According a strong presumption of validity to the HCQIA, we thus need only determine whether the HCQIA is rationally related to a legitimate governmental purpose. See Beach Commc‘ns, 508 U.S. at 314-15.
The legitimacy of Congress‘s purpose in enacting the HCQIA is beyond question. Prior to enacting the HCQIA, Congress found that “[t]he increasing occurrence of medical malpractice and the need to improve the quality of medical care ... [had] become nationwide problems,” especially in light of “the ability of incompetent physicians to move from State to State without disclosure or discovery of the physician‘s previous damaging or incompetent performance.”
Dr. Freilich‘s complaint lists seventeen alleged defects with the statute, such as permitting hearsay during the hearing proceedings and permitting the denial of privileges when there are no findings of incompetent behavior by the physician. Apparently, she would like this court to rewrite the HCQIA. Opinions may differ on what is the most effective way to improve the quality of our nation‘s health care system. However, we cannot substitute our judgment, or that of Dr. Freilich, for Congress‘s rationally based belief that the HCQIA is an effective means to achieve its goal. See Heller v. Doe, 509 U.S. 312, 333, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993).
B.
The HCQIA adopts an objective reasonableness test. As noted earlier, the HCQIA only applies if a peer review action is taken in the reasonable belief that the action was taken (1) after a reasonable effort to obtain the facts; (2) after adequate notice and hearing procedures are afforded the physician involved; (3) in the reasonable belief that the action was warranted by the facts; and (4) in the reasonable belief that the action was in the furtherance of quality health care.
Dr. Freilich alleges that the HCQIA is unconstitutionally vague in violation of the Due Process Clause. She contends that the HCQIA reasonableness standard governing peer review immunity “authorizes, encourages, and permits HMH to act with impunity” because the “HCQIA does not specify what constitutes ‘reasonable belief.‘”
Dr. Freilich‘s vagueness challenge is an odd one. To begin with, the HCQIA reasonableness standard does not even apply to Dr. Freilich‘s own conduct. Rather, it is a standard that a peer review body must meet in order to obtain immunity for its actions.
And the HCQIA‘s objective reasonableness standard is a perfectly valid guide for peer review bodies. The “reasonable belief” standard embodies the discretion that health care professionals have traditionally exercised in determining whether or not their peers meet a requisite level of professional competence. See, e.g., Doyle v. Bowen, 660 F.Supp. 1484 (D.Me.1987), vacated on other grounds, 848 F.2d 296 (1st Cir.1988). Courts respect this discretion because “[a]ny attempt to catalog every medical practice that would fall into the prohibited category would result in the sort of encyclopedic and unwieldy statute [already] rejected as unnecessary.” Id. at 1493. See also, Assoc. of Am. Physicians and Surgeons v. Weinberger, 395 F.Supp. 125, 138 (N.D.Ill.1975) (noting the difficult task of “drafting [a] ... statute with sufficient specificity to give the physicians, practitioners and providers of health care
Furthermore, reasonableness standards have been consistently upheld in the context of qualified immunity. See, e.g., Trulock v. Freeh, 275 F.3d 391, 399 (4th Cir.2001) (“Qualified immunity shields government officials from civil liability ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.‘“) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). In cases brought under
C.
Dr. Freilich next alleges that the HCQIA violates the Tenth Amendment of the United States Constitution and Article Three of the Maryland Declaration of Rights by “invad[ing] subjects traditionally governed by state law,” and by “attempting to immunize conduct otherwise actionable under state law.” 2
The Tenth Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Congress has the power under the Commerce Clause to enact statutes governing physician peer review. Hospitals are regularly engaged in interstate commerce, performing services for out-of-state patients and generating revenues from out-of-state sources. Summit Health, Ltd. v. Pinhas, 500 U.S. 322, 329-30, 111 S.Ct. 1842, 114 L.Ed.2d 366 (1991). And the Supreme Court has already held that because “[r]eports concerning peer review proceedings are routinely distributed across state lines and affect doctors’ employment opportunities throughout the Nation,” there is “no doubt concerning the power of Congress to regulate a peer-review process.” Id. at 327-28.
Having found that Congress has the power to enact the HCQIA, we now ask whether the means employed infringe upon state sovereignty. Johnson, 114 F.3d at 480. We hold that they do not. The HCQIA does not commandeer the state legislature or executive. “It does not require ... [the Maryland Legislature] to enact any laws or regulations, and it does not require state officials to assist in the enforcement of federal statutes regulating private individuals.” Reno v. Condon, 528 U.S. 141, 151, 120 S.Ct. 666, 145 L.Ed.2d 587 (2000). The HCQIA does not compel states to implement a federal regulatory program either. Under the HCQIA, health care providers are required to collect and report information to the State Board of Medical Examiners. See
All that the HCQIA requires of states is the forwarding of information. And the HCQIA specifically provides that “nothing in this part shall be construed as changing the liabilities or immunities under law or as preempting or overriding any State law which provides incentives, immunities, or protection for those engaged in a professional review action that is in addition to or greater than that provided by this part.”
III.
We next turn to Dr. Freilich‘s claims against the hospital under Titles II and III of the Americans with Disabilities Act (ADA) and under the Rehabilitation Act (RA). 3 To the extent possible, we construe similar provisions in the two statutes consistently. See Ennis v. Nat‘l Ass‘n of Bus. and Educ. Radio, Inc., 53 F.3d 55, 57 (4th Cir.1995). Dr. Freilich makes three claims, which we address in turn.
A.
Dr. Freilich brings her first ADA claim on behalf of her dialysis patients. Dr. Freilich alleges that HMH violated the ADA and the RA by providing in-hospital quality assurance and oversight for all hospital services provided by contractors except for dialysis services. See
Our standing inquiry “involves both constitutional limitations on federal-
The district court held that even assuming the existence of the first two elements, Dr. Freilich did not sufficiently allege a hindrance to her patients’ ability to protect their own interests. Freilich, 142 F.Supp.2d at 699. Here Dr. Freilich fails to allege sufficient obstacles to the patients bringing suit themselves. The district court correctly pointed out that “the dialysis patients and indigent patients on whose behalf Dr. Freilich advocated are not constrained in bringing suit by any obstacles made known in the Complaint.” Freilich, 142 F.Supp.2d at 699. In her submission to this court, Dr. Freilich argues that dialysis patients are disabled and chronically ill, foreclosing them from presenting their own rights. But we cannot simply assume that every disabled or chronically ill person is incapable of asserting his or her own claims. In fact, such persons are typical and frequent plaintiffs under both the ADA and RA. Faced, then, with no evidence that Dr. Freilich‘s dialysis patients are hindered from presenting their own claims, we adhere to the long-standing principle that “third parties themselves usually will be the best proponents of their own rights.” Singleton, 428 U.S. at 114.
B.
Next, Dr. Freilich asserts a claim of associational discrimination under the ADA. See
The associational discrimination provision in Title I “was intended to protect qualified individuals from adverse job actions based on ‘unfounded stereotypes and assumptions’ arising from the employees’ relationships with particular disabled persons.” Oliveras-Sifre v. Puerto Rico Dept. of Health, 214 F.3d 23, 26 (1st Cir.2000) (citing Barker v. Int‘l Paper Co., 993 F.Supp. 10, 15 (D.Me.1998)). In Oliveras-Sifre, the plaintiffs alleged that they were punished for their advocacy on behalf of AIDS patients. However, the First Circuit rejected the plaintiffs’ contention that the defendants’ actions violated the associational discrimination provision of the ADA. The plaintiffs did not allege “a specific association with a disabled individual.” Instead, they “contend[ed], in essence, that
Dr. Freilich‘s allegations suffer from similar defects as the allegations in Oliveras-Sifre and Barker. Dr. Freilich alleges that HMH “coerced, intimidated, threatened, or interfered ... with [her] because she exercised rights protected by the ADA,” and that HMH discriminated against her because she refused “to end her advocacy of the dialysis patients’ rights that were being violated under [the] ADA.” She further alleges that she was “denied equal use of facilities, privileges, advantages or other opportunities because of her association with and her relationship to patients with disabilities.” But such generalized references to association with disabled persons or to advocacy for a group of disabled persons are not sufficient to state a claim for associational discrimination under the ADA. Every hospital employee can allege at least a loose association with disabled patients. To allow Dr. Freilich to proceed on such a basis would arm every hospital employee with a potential ADA complaint. A step of that magnitude is for Congress, not this court, to take.
C.
Finally, Dr. Freilich brings a claim for retaliatory discharge under the ADA and the RA. She alleges that HMH terminated her hospital privileges “because she strongly opposed and voiced her concerns about HMH‘s practices in treating dialysis patients.” Specifically, Dr. Freilich contends that her opposition to HMH‘s decision to outsource quality oversight and quality assurance over dialysis services constitutes protected conduct under the ADA. Under
A plaintiff need not establish that the conduct she opposed actually constituted an ADA violation. Ross v. Communications Satellite Corp., 759 F.2d 355, 357 n. 1 (4th Cir.1985). But a complainant must allege the predicate for a reasonable, good faith belief that the behavior she is opposing violates the ADA. E.g., Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224, 234 (2d Cir.2000).
In her complaint, Dr. Freilich alleges what at most are violations of state medical malpractice law, not infractions of the ADA. Dr. Freilich says that she complained orally and/or in writing regarding the failure to transport a patient in a
Every disagreement over the adequacy of hospital expenditures or the provision of patient care is not an ADA issue. If it were, courts would be drawn into medical resource disputes quite beyond their expertise and hospital personnel would be diverted by litigation from their primary task of providing medical attention to those in their charge. Hospitals are in the business of serving persons with many kinds of disabilities, and we have noted that “our federal disability statutes are not designed to ensure that persons with one type of disability are treated the same as persons with another type of disability.” Lewis v. Kmart Corp., 180 F.3d 166, 171-72 (4th Cir.1999). Recognizing that the medical community is best equipped to conduct the balancing that medical resource allocations inevitably require, Congress declined to give courts a mandate to arbitrate such disputes.
Because Dr. Freilich has failed to allege any set of facts supporting her claim that she opposed practices made unlawful by the ADA, we affirm the district court‘s dismissal of her retaliation claim.
IV.
We turn finally to Dr. Freilich‘s due process challenge to the Maryland statute and regulation which govern the credentialing process.
Maryland Code Health-General Article
Pursuant to
Dr. Freilich alleges that Maryland‘s credentialing regulation,
The statute and regulation will survive a vagueness challenge so long as each provides physicians with reasonable notice as to the type of conduct that may cause a denial of their staff privileges. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). As we pointed out earlier, a provision cannot particularize every different set of facts and circumstances that might lead a peer review committee to conclude that a physician‘s privileges should be terminated. Hospitals have historically had wide discretion to make decisions regarding their medical staff. See, e.g., Glass v. Doctors Hosp., Inc., 213 Md. 44, 131 A.2d 254 (1957). “The governing board of a hospital must be given great latitude in prescribing the necessary qualifications for potential applicants.” Woodbury v. McKinnon, 447 F.2d 839, 845 (5th Cir.1971). This includes the consideration of factors beyond technical medical skills. Schlein v. Milford Hosp., 423 F.Supp. 541, 544 (D.Conn.1976) (“Due process does not limit the hospital‘s consideration to technical medical skills.“).
Dr. Freilich‘s vagueness argument would lead the uninformed observer to believe that a Maryland hospital can terminate a physician‘s privileges solely on a subjective determination that the physician had a bad attitude. This is untrue. Dr. Freilich ignores the fact that the COMAR regulation requires hospitals to assess a physician‘s pattern of performance based upon seven separate factors. The regulation does not authorize or encourage private “hospitals to terminate a physician‘s privileges solely because of his/her ‘attitudes, cooperation, and ability to work with others.‘” Complaint ¶ 89. By its own terms, the regulation requires hospitals to employ a broad based, formal written reappointment process that considers numerous criteria,
Furthermore, most courts that have considered the use of criteria such as attitude and cooperation in a hospital‘s reappointment decisions have refused to interfere with the discretion given to hospitals over substantive credentialing decisions, so long as those criteria are not applied arbitrarily. For example, in Sosa v. Board of Managers of the Val Verde Memorial Hospital, 437 F.2d 173 (5th Cir.1971), the Fifth Circuit considered a constitutional challenge to the Val Verde Memorial Hospital Credential Committee‘s use of “character, qualifications, and standing” in reviewing applicants seeking admission to the hospital medical staff. Id. at 176 (internal citation omitted). The court admitted that “standards such as ‘character, qualifications, and standing’ are
The Fifth Circuit is hardly alone in its view. Courts across the country have upheld bylaws employing similar factors as Maryland‘s regulation. Freilich, 142 F.Supp.2d at 689. In Yashon v. Hunt, 825 F.2d 1016 (6th Cir.1987), the Sixth Circuit held that “a physician‘s unprofessional conduct, incompatibility and lack of cooperation on a hospital staff are appropriate considerations for denying staff privileges.” Id. at 1027 (citing Stratton v. Wadsworth Veterans Hosp., 537 F.2d 361, 366 (9th Cir.1976)). See also Mahmoodian v. United Hosp. Center, Inc., 185 W.Va. 59, 404 S.E.2d 750, 758 (W.Va.1991) (finding “an ability to work with others” a “reasonably definite standard proscribing the conduct upon which the [clinical privileges] revocation or other adverse action is based“). Today‘s health care environment has become increasingly complex. As Dr. Freilich‘s complaint itself demonstrates, the operation of a hospital requires the coordination of numerous employees and departments, each with different responsibilities that build and depend upon each other. Thus, staff cooperation and communication are essential to ensuring a high quality of patient care. Disruptive behavior in the workplace can not only affect the morale and teamwork of the staff itself, but in so doing cause actual harm to patients. A hospital‘s evaluation of a physician‘s attitude and ability to work with others is not unduly vague and is directly related to the goal of good patient care. Accordingly, we reject Dr. Freilich‘s challenge to Maryland‘s physician credentialing system.
V.
Dr. Freilich‘s complaint invites courts to enmesh themselves in hospital governance. Both Congress and the Maryland legislature have proceeded in precisely the opposite direction, affording hospital authorities both the discretion and the protection to discharge their assigned tasks. We decline to interfere with these legislative judgments and affirm the judgment of the district court dismissing plaintiff‘s claims.
AFFIRMED.