01-6190, 01-6217 | 6th Cir. | Aug 20, 2003
Before: CLAY and GIBBONS, Circuit Judges;
CLELAND, District Judge. [*] UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT _________________ COUNSEL ARGUED: Tom Curtis, CURTIS & KIRKPATRICK, R OBERT H. M EYERS , M.D., (cid:88) Pasadena, California, for Appellants. Charles J. Cronan IV, (cid:45) Individually and as a STITES & HARBISON, Louisville, Kentucky, for Appellees. (cid:45) Partnership; M ARY M EYERS , ON BRIEF: Tom Curtis, CURTIS & KIRKPATRICK, (cid:45) Nos. 01-6190/6217 M.D., Individually and as a Pasadena, California, for Appellants. Charles J. Cronan IV, (cid:45) > Partnership, Margaret R. Appenfelder, STITES & HARBISON, (cid:44) Louisville, Kentucky, for Appellees. Plaintiffs-Appellants/ (cid:45) Cross-Appellees, (cid:45) _________________ (cid:45) (cid:45) v. OPINION (cid:45) _________________ (cid:45) C OLUMBIA /HCA (cid:45) CLELAND, District Judge. Plaintiffs-appellants Dr. H EALTHCARE C ORPORATION , (cid:45) Robert Meyers (“Meyers”) and his wife, Dr. Mary Meyers, et al., (cid:45) initiated this action against multiple defendants after the (cid:45) Defendants-Appellees/ Board of Trustees of Logan Memorial Hospital denied (cid:45) Cross-Appellants. Meyers’ reappointment to the hospital’s medical staff. The (cid:45) district court granted summary judgment in favor of (cid:78) defendants, finding that they were immune under the Health Care Quality Improvement Act (“HCQIA”), 42 U.S.C.
Appeal from the United States District Court § 11101 et seq. Defendants moved for an award of costs and for the Western District of Kentucky at Bowling Green. attorney’s fees under the HCQIA, and the district court denied No. 97-00219—Joseph H. McKinley, Jr., District Judge. their motion. Plaintiffs appeal the grant of summary judgment; defendants cross-appeal the denial of costs and
Argued: May 2, 2003 fees. We affirm the judgment of the district court on both issues.
Decided and Filed: August 20, 2003 privileges at Logan Memorial Hospital, Inc. (“LMH”) in Committee was to notify Meyers of the general nature of its Russellville, Kentucky. Shortly thereafter, the Credentials concerns and arrange a meeting with Meyers. The Committee and the Medical Executive Committee (“MEC”) Credentials Committee did, on short notice, invite Meyers to approved Meyers for staff privileges. As a result, in a meeting. According to Fred Mudge, a member of the September 1991, the LMH Board of Trustees (“Board”) Board, this invitation did not comply with the Bylaws. approved Meyers for appointment to the medical staff. Pursuant to the LMH Bylaws, all initial appointments to the On June 3, 1993, the MEC, half of whose members were medical staff were provisional for one year. At the end of that also members of the Credentials Committee, voted to accept year the physician would be reevaluated to qualify for the Credentials Committee decision and revoke Meyers’ staff advancement from associate to active member status. privileges. Neither of these committees, however, had the
power to grant or deny privileges to Meyers. The MEC was In the fall of 1992, the Credentials Committee began to to consider the recommendation from the Credentials evaluate Meyers for his advancement to active staff Committee and make a recommendation to the Board, which privileges. On April 12, 1993, the Credentials Committee, had the ultimate authority to grant, deny, or terminate which Meyers argues was composed largely of his Meyers’ privileges. competitors, voted to deny him staff privileges. In its decision, the committee cited concerns about Meyers’ history On January 24, 1994, the Board informed Meyers that it of moving from hospital to hospital following disputes with was assuming full responsibility for determining his hospital staff, [2] his failure to timely and fully disclose
reappointment and advancement to active staff because of his prescription practices pursuant to complaints from with LMH’s policy of obtaining post-operative films and that pharmacists and the Kentucky State Police about the volume he had demonstrated repeated instances of violating the sterile of prescriptions he wrote for controlled substances. The field. investigation concluded that “Meyers may not have used good judgment in prescribing controlled substances to all of his At this point, the Board began proceedings under the patients.” The Kentucky Board of Medical Licensure Medical Staff Bylaws Fair Hearing Plan § 2.3-2 which recommended that Meyers attend a University of Kentucky provides that “[a] hearing occasioned by an adverse action of miniresidency course in prescribing controlled substances. the Trustees pursuant to § 1.2(b) or (c) shall be conducted by
a hearing committee appointed by the Chairman of the On March 18, 1994, this three-member committee of the Trustees and composed of five persons. At least three Board voted to deny Meyers’ appointment to active staff. The Medical Staff members shall be included on this committee reasons cited for the committee’s decision were Meyers’
when feasible.” The Fair Hearing Committee was composed failure to satisfy requirements that he meet LMH’s standard of Bill Paxton, a retired court of appeals judge; Fred Greene, of care, abide by the ethics of the profession, work an attorney; Mike Robbins, a bank president; Thomas cooperatively with others, and timely complete medical Luckett, an industrialist; and Paul Kerr, a licensed dentist. records. The committee outlined Meyers’ pattern of The Board notified Meyers and explained that it was not disruptive behavior which included, but was not limited to, feasible to have members of the medical staff on the Fair temper tantrums, repeated refusal to limit elective cases to Hearing Committee. This committee met on eleven time periods routinely reserved for him, attempted occasions. Meyers was represented by counsel, given the interference with the right of an attending physician to refer
opportunity to present witnesses, affidavits, and other Nos. 01-6190/6217 Meyers, et al. v. Columbia/HCA 7 8 Meyers, et al. v. Columbia/HCA Nos. 01-6190/6217 Healthcare Corp., et al. Healthcare Corp., et al. documentary evidence, and given the right to confront, medical staff who engaged in investigation and credentialing examine, and cross-examine witnesses presented by LMH. activities, and members of the Board that took final action
after hearing Meyers’ appeal. The complaints alleged breach In April 1995, the Fair Hearing Committee issued its report of contract, violations of federal antitrust laws, violations of and recommendation that LMH not appoint Meyers to its staff the Emergency Medical Treatment and Active Labor Act, because of his failure to meet LMH’s ethical standards and breach of the covenant of good faith and fair dealing, tortious his inability to work cooperatively with others. In May, the interference with economic advantage, and defamation. On Board adopted and affirmed the Fair Hearing Committee’s January 27, 2000, the district court entered an order granting recommendation. The Board informed Meyers of its decision summary judgment in favor of Defendants on the basis of and his right to appeal. Meyers appealed the Board’s decision HCQIA immunity. Plaintiffs’ motion to alter, amend, and and was again represented by counsel. On August 9, 1995,
vacate the order was denied on May 25, 2000. the Board informed Meyers of its vote to affirm the decision denying clinical privileges to Meyers. This was the Board’s The parties then entered into a stipulation of dismissal, final decision and Meyers’ privileges were revoked. which was entered by the district court on March 23, 2001.
In the stipulation, the parties agreed that upon a ruling by the II. PROCEDURAL HISTORY district court on a motion for costs and fees (filed by the defendants on April 6, 2001), the case would be deemed On August 22, 1995, Meyers brought suit in Kentucky state concluded and the ruling on the motion for costs and fees court (Logan Circuit Court) seeking a restraining order and a would constitute a final judgment for the purpose of temporary and permanent injunction requiring LMH to determining the time in which to file appeals. reinstate his staff privileges and enjoining LMH from making a report to the National Practitioner Data Bank. The court On August 14, 2001, the district court entered an order granted the restraining order and temporary injunction in part
denying Defendants’ motion for costs and fees. Plaintiffs and but denied the motion for an injunction which would require Defendants filed timely notices of appeal. LMH to reinstate Meyers’ privileges.
III. STANDARDS OF REVIEW
On August 8, 1996, Meyers filed a second suit in Logan Circuit Court with numerous causes of action against thirty- A district court must grant a motion for summary judgment four defendants. Defendants moved for summary judgment if it finds that the “pleadings, depositions, answers to based on immunity pursuant to K.R.S. § 311.377(1). The interrogatories, and admissions on file together with the court denied that motion. affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment On November 5, 1997, while the two suits were still as a matter of law.” Fed. R. Civ. P. 56(c). The moving pending in state court, Meyers filed suit in the United States party bears the initial burden of specifying the basis for its District Court for the Western District of Kentucky. motion and of identifying that portion of the record which Following an order for a more definite statement, Meyers
demonstrates the absence of a genuine issue of material fact. filed two amended complaints against twenty-two defendants, Celotex Corp. v. Catrett , 477 U.S. 317" date_filed="1986-06-25" court="SCOTUS" case_name="Celotex Corp. v. Catrett, Administratrix of the Estate of Catrett">477 U.S. 317, 322 (1986). The non- including hospital administrators, members of LMH’s moving party must then produce specific evidence that Nos. 01-6190/6217 Meyers, et al. v. Columbia/HCA 9 10 Meyers, et al. v. Columbia/HCA Nos. 01-6190/6217 Healthcare Corp., et al. Healthcare Corp., et al. demonstrates there is a genuine issue of fact for trial. reasonableness requirements, then those persons participating Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48 in the review “shall not be liable in damages under any law of (1986). “The mere existence of a scintilla of evidence in the United States or of any State . . . with respect to the support of the plaintiff’s position will be insufficient; there action.” 42 U.S.C. § 11111(a)(1). must be evidence on which the jury could reasonably find for Specifically, persons participating in a professional review the plaintiff.” Id. at 252. The court must view the evidence action are entitled to immunity if the action is taken: in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S.
(1) in the reasonable belief that the action was in 574, 587 (1986). On appeal, this court reviews an order furtherance of quality health care; granting summary judgment de novo . Williams v. Mehra , 186 F.3d 685, 689 (6th Cir. 1999). The appellate court uses the
(2) after a reasonable effort to obtain the facts of the same legal standard as used by the district court to determine matter; whether summary judgment is appropriate. Id. (3) after adequate notice and hearing procedures are The district court’s denial of Defendants’ request for afforded to the physician involved or after such attorney’s fees is reviewed for abuse of discretion. Muzquiz other procedures as are fair to the physician under v. W.A. Foote Memorial Hosp., Inc. , 70 F.3d 422" date_filed="1995-11-16" court="6th Cir." case_name="Moses Muzquiz, Jr., M.D., (94-1088), Cross-Appellee v. W.A. Foote Memorial Hospital, Inc., (94-1089), (94-1420)">70 F.3d 422, 432 (6th the circumstances; and Cir. 1995). (4) in the reasonable belief that the action was
IV. DISCUSSION
warranted by the facts known after such reasonable effort to obtain facts and after meeting the
A. The district court’s grant of summary judgment in requirement of paragraph (3). favor of Defendants on the basis of HCQIA immunity was proper.
The HCQIA was passed in 1986 to provide for effective could affect adversely the health or welfare of a patient or peer review and interstate monitoring of incompetent patients), and which affects (or may affect) adversely the clinical privileges, or memb ership in a pro fessiona l society, of the physicians, and to grant qualified immunity from damages for physician. those who participate in peer review activities. Austin v. McNamara , 979 F.2d 728, 733 (9th Cir. 1992); 42 U.S.C.
42 U.S.C. § 1 115 1(9). “Pro fessiona l review activity,” in turn, is defined § 11101. If a “professional review action” [4] satisfies certain as “an activity of a health care en tity with respect to an individual physician
(A) to determine whether the p hysician may have clinical [4] The HC QIA defines “professiona l review action” as: privileges with respect to, or memb ership in, the entity;
(B) to determine the sco pe or conditions of such privileges or an action or recomm endation o f a professional review body membership; or which is taken or made in the conduct of professional review (C) to change or modify such privileges or membership. activity, which is based on the competence or professional conduct of an individual physician (which conduct affects or Id. § 1115 1(10).
Nos. 01-6190/6217 Meyers, et al. v. Columbia/HCA 11 12 Meyers, et al. v. Columbia/HCA Nos. 01-6190/6217 Healthcare Corp., et al. Healthcare Corp., et al. 42 U.S.C. § 11112(a). Once the preceding standards are met, are outside the scope of § 11112(a)?” Bryan v. James E. the HCQIA offers immunity to: Holmes Reg’l Med. Ctr. , 33 F.3d 1318" date_filed="1994-10-04" court="1st Cir." case_name="Floyd Bryan Floyd Bryan v. James Holmes Regional Medical Center">33 F.3d 1318, 1333 (11th Cir. 1994)
(quoting Austin v. McNamara , 979 F.2d 728" date_filed="1992-11-06" court="9th Cir." case_name="George Austin v. James">979 F.2d 728, 734 (9th Cir. (A) the professional review body, 1992)). The plaintiff has the burden of overcoming the presumption of immunity by showing that the review process
(B) any person acting as a member or staff to the body, was not reasonable. Id. Meyers argues that Defendants can meet none of the elements for establishing statutory
(C) any person under a contract or other formal immunity. However, as the district court found, he failed to agreement with the body, and raise a genuine issue of material fact as to any element. Therefore, we will affirm the grant of summary judgment.
(D) any person who participates with or assists the body with respect to the action. 1. The Board’s Action Was Taken in the Reasonable Belief that It Was in Furtherance of Quality Health 42 U.S.C. § 11111(a)(1). Care The term “professional review body” includes a “health The “reasonable belief” standard of the HCQIA is satisfied care entity and the governing body or any committee of a if “the reviewers, with the information available to them at the health care entity which conducts professional review time of the professional review action, would reasonably have activity.” 42 U.S.C. § 11151(11). The district court correctly concluded that their action would restrict incompetent found that Defendants all fall within the protected categories behavior or would protect patients.” Bryan , 33 F.3d 1318" date_filed="1994-10-04" court="1st Cir." case_name="Floyd Bryan Floyd Bryan v. James Holmes Regional Medical Center">33 F.3d at 1323 listed in § 11111(a)(1). LMH is a health care entity and a (citing H.R. R EP . N O . 903, at 10, reprinted in 1986 professional review body. The individual doctors are covered U.S.C.C.A.N. at 6392-93). It is an objective standard, rather under (B)-(D) as staff members of LMH, persons under a than a subjective good faith requirement. Id. (citing Austin , contract with LMH, or persons who participate with or assist 979 F.2d at 734). The Act does not require that the the body with respect to the professional review action. professional review result in actual improvement in the quality of health care, but only that it was undertaken in the
The HCQIA creates a rebuttable presumption of immunity, reasonable belief that quality health care was being furthered. forcing the plaintiff to prove that the defendant’s actions did Imperial v. Suburban Hosp. Ass'n, Inc. , 37 F.3d 1026" date_filed="1994-09-12" court="4th Cir." case_name="Roland Imperial v. Suburban Hospital Association">37 F.3d 1026, 1030 not comply with the relevant standards. Id. § 11112(a) (“A (4th Cir. 1994). professional review action shall be presumed to have met the preceding standards necessary for the protection set out in
Meyers contends that a reasonable jury could find that this section 11111(a) of this title unless the presumption is element was not satisfied because: (1) eight members of the rebutted by a preponderance of the evidence.”). As the medical staff testified on behalf of Meyers and no member district court explained, this rebuttable presumption “creates testified against him; (2) two independent reviewers gave an unusual summary judgment standard” that can be stated as favorable reviews of Meyers; (3) two psychologists who follows: “Might a reasonable jury, viewing the facts in the examined Meyers recommended that he receive his best light for [the plaintiff], conclude that he has shown, by a privileges; and (4) although some nurses testified as to preponderance of the evidence, that the defendants’ actions Nos. 01-6190/6217 Meyers, et al. v. Columbia/HCA 13 14 Meyers, et al. v. Columbia/HCA Nos. 01-6190/6217
Healthcare Corp., et al. Healthcare Corp., et al. disruptive incidents, each of them testified that they could still that doctors possess at least a reasonable ‘ability to work with work with Meyers. others.’”). Meyers failed to present evidence that the action
against him was not taken in the reasonable belief that it However, the evidence conclusively demonstrates that both furthered quality health care. the Board’s decision and the Fair Hearing Committee’s decision were made in the reasonable belief that they were 2. The Board’s Action Was Taken After a Reasonable furthering quality health care, and no reasonable jury could Effort to Obtain the Facts of the Matter find otherwise. Among other evidence, the Fair Hearing Similarly, Meyers failed to raise any genuine issue of fact Committee heard testimony about twenty-two incident reports with respect to the second element of HCQIA immunity. The involving Meyers which documented loss of temper during inquiry is whether the “totality of the process” leading up to surgery, breaking the sterile field, failure to take and the professional review action evinced a reasonable effort to document histories before patients were sedated for surgery, and other problems. [5] This evidence was also considered by obtain the facts of the matter. Mathews v. Lancaster Gen.
Hosp. , 87 F.3d 624" date_filed="1996-06-21" court="3rd Cir." case_name="Robert Mathews v. Lancaster General Hospital Lancaster General Hospital Foundation Columbia Hospital Columbia Hospital Foundation Gerald Rothacker">87 F.3d 624, 637 (3d Cir. 1996). In this case, there the Board. The Fair Hearing Committee noted that its was an exhaustive review process. As the district court noted, decision was based on Meyers’ temper tantrums, his use of Meyers was reviewed by both the Credentials Committee and coercive tactics, delinquent medical records, his inability to the MEC, as well as by a committee of three Board members work with others, and unethical conduct. As the district court who conducted an independent investigation. This three- held, these reasons are in furtherance of quality health care, person committee questioned Meyers and gave him an despite the fact that no patients were actually injured. opportunity to provide them with additional information. It “Quality health care” is not limited to clinical competence, then made a recommendation to the Board, which voted to but includes matters of general behavior and ethical conduct.
deny Meyers’ appointment to the active staff. Thereafter, the See Bryan , 33 F.3d 1318" date_filed="1994-10-04" court="1st Cir." case_name="Floyd Bryan Floyd Bryan v. James Holmes Regional Medical Center">33 F.3d at 1334-35 (finding that the termination of Fair Hearing Committee met on eleven occasions and heard physician’s privileges was “taken in reasonable belief that the testimony from thirty-five witnesses. Meyers was represented action was in furtherance of quality health care” where by counsel, given the opportunity to present witnesses, physician had “exhibited a pattern of unprofessional conduct affidavits, and other documentary evidence, and given the over a period of many years,” “was disruptive,” and right to confront, examine, and cross-examine witnesses “interfered with the important work of other employees”); presented by LMH. Meyers disputes that a “reasonable Everhart v. Jefferson Parish Hosp. Dist. No. 2., 757 F.2d inquiry” occurred, but his argument is limited to conclusory 1567, 1573 (5th Cir. 1985) (“[Q]uality patient care demands
statements attacking individual items of evidence considered by the reviewers. He fails, however, to raise a genuine issue to rebut the presumption that the professional review action [5] Meyers argues that genuine issues of fact exist regarding the
was taken after a “reasonable effort to obtain the facts.” verac ity of the underlying allegations against him. Our review, however, is not directed at whether each of the complaints were undisputedly true, but whethe r Defendants acted reasonably in considering and relying upon them. In this case , in view of the volume of incidents and the seriousness of the complaints, there is no genuine issue with respect to the reasonab leness of Defendants’ belief that their action was taken in the furtherance o f quality health care. Nos. 01-6190/6217 Meyers, et al. v. Columbia/HCA 15 16 Meyers, et al. v. Columbia/HCA Nos. 01-6190/6217
Healthcare Corp., et al. Healthcare Corp., et al. 3. Meyers Received Adequate Notice and Hearing In any event, the HCQIA sets out specific “safe harbor” Procedures procedures, which satisfy the “notice and hearing procedures” requirement of § 11112(a)(3). This requirement is met if the The third element of the HCQIA immunity test is whether hospital has provided, or the physician has voluntarily adequate notice and hearing procedures were afforded to the waived, the following: physician involved. 42 U.S.C. § 11112(a)(3). Meyers raises the same argument on appeal that he presented to the district 1. The physician has been given notice stating that a court. He argues that a reasonable jury could conclude that professional review action has been proposed to be LMH did not provide adequate notice and procedures because taken against the physician, reasons for the proposed it did not comply with its own bylaws. action, that the physician has the right to request a
hearing on the proposed action, any time limit (of This argument fails for two reasons. First, Meyers failed to not less than 30 days) within which to request such show that LMH violated its bylaws. Second, even assuming a hearing, and a summary of the rights in the hearing LMH did violate the bylaws, the notice and procedures . . . . provided complied with the HCQIA’s statutory “safe harbor,” as described below. 2. If a hearing is requested on a timely basis . . . , the
physician involved must be given notice stating the First, the Board was proceeding under the Medical Staff place, time, and date, of the hearing, which date Bylaws Fair Hearing Plan § 2.3-2 which provides that “[a] shall not be less than 30 days after the date of the hearing occasioned by an adverse action of the Trustees notice, and a list of the witnesses (if any) expected pursuant to § 1.2(b) or (c) shall be conducted by a hearing to testify at the hearing on behalf of the professional committee appointed by the Chairman of the Trustees and review body. composed of five persons. At least three Medical Staff members shall be included on this committee when feasible .” 3. If a hearing is requested on a timely basis . . . , the (Emphasis added.) Claudia Dickerson, counsel for LMH, hearing shall be held (as determined by the health explained in letters to Meyers’ counsel dated June 27 and care entity) before an arbitrator mutually acceptable July 1, 1994, that it was not feasible to appoint members of to the physician and the health care entity, before a the medical staff to the Fair Hearing Committee because some hearing officer who is appointed by the entity and were working too many hours to devote adequate time to the who is not in direct economic competition with the Committee, some had been involved previously in Meyers’ physician involved, or before a panel of individuals peer review or incidents under review, and some were, who are appointed by the entity and are not in direct themselves, possible subjects of future peer review. Meyers economic competition with the physician involved. disputes this fact by saying that he located four members of
4. [I]n the hearing the physician involved has the right the medical staff who had not been asked to serve on the to representation by an attorney or other person of Committee. However, this evidence alone cannot show that the physician’s choice, to have a record made of the LMH violated its bylaws.
proceedings, copies of which may be obtained by the physician upon payment of any reasonable
Nos. 01-6190/6217 Meyers, et al. v. Columbia/HCA 17 18 Meyers, et al. v. Columbia/HCA Nos. 01-6190/6217 Healthcare Corp., et al. Healthcare Corp., et al. charges associated with the preparation thereof, to (3d Cir. 1999). While Meyers challenges certain of the call, examine, and cross-examine witnesses, to underlying facts upon which Defendants relied, he has not present evidence determined to be relevant by the shown that the facts were “so obviously mistaken or hearing officer, regardless of its admissibility in a inadequate as to make reliance on them unreasonable.” court of law, and to submit a written statement at the Mathews, 87 F.3d 624" date_filed="1996-06-21" court="3rd Cir." case_name="Robert Mathews v. Lancaster General Hospital Lancaster General Hospital Foundation Columbia Hospital Columbia Hospital Foundation Gerald Rothacker">87 F.3d at 638. Moreover, “a plaintiff’s showing close of the hearing; and upon completion of the ‘that [the] doctors reached an incorrect conclusion on a hearing, the physician involved has the right to particular medical issue because of a lack of understanding’ receive the written recommendation of the arbitrator, does not ‘meet the burden of contradicting the existence of a officer, or panel, including a statement of the basis reasonable belief that they were furthering health care quality for the recommendations, and to receive a written in participating in the peer review process.’” Brader, 167
F.3d at 843 (quoting Imperial, 37 F.3d 1026" date_filed="1994-09-12" court="4th Cir." case_name="Roland Imperial v. Suburban Hospital Association">37 F.3d at 1030). [7] In view of decision of the health care entity, including a statement of the basis for the decision. the Board’s well-supported findings that Meyers had failed to
meet LMH’s ethical standards and that he was unable to work 42 U.S.C. § 11112(b). [6] The district court correctly found that cooperatively with others, there is no genuine issue as to no reasonable jury could find that Meyers did not receive whether the Board’s action was taken in the reasonable belief adequate notice or the other requirements of § 11112(b) were that it was warranted by the facts. not met. Meyers himself admitted under oath that he received each of the HCQIA’s notice and hearing requirements (which 5. Meyers’ Legislative History Argument had been outlined in a letter to him). Accordingly, his Meyers makes one additional argument, contending that argument that notice was insufficient fails.
“the District Court erred in granting immunity under the Act 4. The Board’s Action Was Taken in the Reasonable where the review was conducted entirely by nonmedical Belief That the Action Was Warranted by the Facts personnel because such does not constitute ‘peer review.’” Appellants’ Brief at 31.) Although “peer review” is not The district court also held that no reasonable jury could defined in the Act, it has been described as “the process by find that the Board did not take the action in the reasonable which physicians and hospitals evaluate and discipline staff belief that it was warranted by the facts. “Our analysis under doctors.” Bryan , 33 F.3d at 1321. Bryan explained peer § 11112(a)(4) closely tracks our analysis under review as the entire system of handling physician disciplinary § 11112(a)(1).” Gabaldoni v. Washington County Hosp. actions, from promulgation of bylaws to medical staff Ass'n , 250 F.3d 255, 263 n.7 (4th Cir. 2001) (quoting recommendation to final Board action. Id. at 1324. Sugarbaker v. SSM Health Care, 190 F.3d 905" date_filed="1999-08-19" court="8th Cir." case_name="Stephen P. Sugarbaker, m.d.,appellant/cross-appellee v. Ssm Health Care, D/B/A St. Marys Health Center,cross-Appellant/appellee">190 F.3d 905, 916 (8th Cir. Accordingly, the process at issue was “peer review.” 1999)); Brader v. Allegheny Gen. Hosp ., 167 F.3d 832" date_filed="1999-02-12" court="3rd Cir." case_name="Alan H. Brader v. Allegheny General Hospital.">167 F.3d 832, 843
Meyers also claims that “the Act does not give immunity to persons, other than physicians and medical personnel, performing peer reviews of physicians.” Appellants’ Brief at [6] W e also note that § 11112 (b) also provides that a failure to meet the
“safe harbor” provisions outline d above does “not, in itself, co nstitute failure to meet the [adequate notice and hearing] standards of subsection [7] (a)(3) of this section.” 42 U.S.C. § 11 112(b). See also supra note 5. Nos. 01-6190/6217 Meyers, et al. v. Columbia/HCA 19 20 Meyers, et al. v. Columbia/HCA Nos. 01-6190/6217
Healthcare Corp., et al. Healthcare Corp., et al. 32.) As Defendants point out, the point is moot because none immunity was only intended for physicians, it could have of the non-physician reviewers is a defendant in this action. done so. In its order granting Defendants’ summary judgment (Appellees’ Brief at 55.) Even so, Meyers devotes twenty- motion, the district court stated that it could five pages of his appellate brief to this argument, including find no provision of the HCQIA which requires the extensive discussion of legislative history that he argues professional review process to be conducted by indicates the purpose of the Act is to provide immunity for physicians only. In fact, the language of the HCQIA physicians participating in peer review, and not for others uses the word “person” rather than “physician” to involved in the review process. He argues that
describe those who will be granted immunity. 42 U.S.C. the disputed section of the Act states that “(A) the §§ 11111(a)(1)(B)-(D). Furthermore, under the HCQIA, professional review body, (B) any person acting as a a hearing may be conducted by an arbitrator, hearing member or staff to the body, (C) any person under a officer, or panel of individuals , which contemplates the contract or other formal agreement with the body, and use of non-physicians in the professional review process. (D) any person who participates with or assists the body Id. § 11112(b)(3)(A)(I)-(iii). with respect to the action, shall not be liable in damages (J.A. at 11 (emphasis added).) The district court’s reasoning . . . .” 42 U.S.C. § 11111(a)(1)(A)-(D) . . . The Act is was correct, and we hold that the action in this case was a ambiguous in defining to whom it grants immunity. The professional review action giving rise to HCQIA immunity word “person” in the Act is never defined, even though for the persons involved. the Act defines many other words used. B. Cross-Appeal: The District Court Did Not Abuse Its
( Id. at 34-35.) Meyers thus implies that, because the review Discretion in Declining to Award Attorney’s Fees was not conducted by physicians, the review was not a “professional review action” and thus the HCQIA does not
Finally, Defendants contend that the district court erred in apply. denying their motion for costs and attorney’s fees. The following provision of the HCQIA provides for fee-shifting:
We disagree and find that the statutory language is not ambiguous as to who is entitled to immunity or as to what In any suit brought against a defendant, to the extent that actions are covered. It is clear that every “person” who a defendant has met the standards set forth under section participates in a professional review action is entitled to 11112(a) of this title and the defendant substantially immunity. 42 U.S.C. § 11111(a)(1). Meyers argues that the prevails, the court shall, at the conclusion of the action, word “person” should be read as “physician,” but there is no award to a substantially prevailing party defending support for this assertion. Where the language of the statute against any such claim the cost of the suit attributable to is not ambiguous, it is unnecessary to resort to legislative such claim, including a reasonable attorney’s fee, if the history. See, e.g., Garcia v. United States , 469 U.S. 70" date_filed="1985-02-19" court="SCOTUS" case_name="Garcia v. United States">469 U.S. 70, 76 claim, or the claimant’s conduct during the litigation of n.3. In any event, Meyers’ legislative history discussion is the claim, was frivolous, unreasonable, without limited to statements made about the general purpose of the foundation, or in bad faith. Act, rather than the specific provision at issue. Accordingly, his argument fails. Had Congress wished to specify that Nos. 01-6190/6217 Meyers, et al. v. Columbia/HCA 21 22 Meyers, et al. v. Columbia/HCA Nos. 01-6190/6217
Healthcare Corp., et al. Healthcare Corp., et al. 42 U.S.C. § 11113. Thus, a defendant should receive an Defendants/cross-appellants contend that the district court award of costs and fees when (1) the defendants are among erred by considering only the foundation of Meyers’ claims the persons covered by the HCQIA, (2) the standards set forth without considering his “abusive” conduct . They seek $2,349 in § 11112(a) were followed, (3) the defendants substantially in costs and $215,031 in attorney’s fees. Specifically, cross- prevailed, and (4) the plaintiffs’ claim or conduct during the appellants argue that Meyers’ filing suit in federal court while litigation was frivolous, unreasonable, without foundation, or his two state court suits were pending was a “relentless in bad faith. Defendants in this case clearly satisfied the first pursuit” that “was a continuation of harassing behavior three factors. Whether a party’s claim or conduct is frivolous, demonstrated at [LMH] and other hospitals.” (Appellees’ unreasonable, or without foundation is a question committed Brief at 68.) Meyers’ behavior at other hospitals is not a to the sound discretion of the district court. Johnson v. Nyack proper consideration in the attorney’s fees question. The fact Hosp. , 964 F.2d 116, 123 (2d Cir. 1992) (citing that he filed two actions in state court before filing the action Christiansburg Garment Co. v. EEOC , 434 U.S. 412, 421 in federal court is relevant, but not determinative of the (1978)). attorney’s fees issue. As Meyers points out, there is “ no
evidence whatever on the litigation strategy question as to Examining the facts, the district court found that the fourth why the federal action was pursued instead of the state factor was not satisfied because plaintiffs’ claims and conduct action.” (Appellants’ Reply Brief at 53.) The district court were not frivolous, unreasonable, without foundation, or in was very familiar with plaintiffs’ claims and conduct, having bad faith. In its order denying Defendants’ motion for costs presided over the case for nearly four years. It correctly and fees, the court stated that:
stated and applied the standard for granting attorney’s fees. it was not unreasonable, frivolous, without foundation, or Even if we may have decided the attorney’s fees issue in bad faith for plaintiffs to oppose the LMH Defendants’
differently if reviewing de novo , Defendants fail to position on HCQIA immunity. Plaintiffs had valid demonstrate that the district court abused its discretion by questions concerning the manner in which the LMH denying attorney’s fees in this case. Defendants conducted the professional review of Dr. Robert Meyers and chose to resolve those issues in V. CONCLUSION this Court. As stated above, the fact that Plaintiff did not For the foregoing reasons, we affirm the district court’s prevail in no way indicates that Plaintiffs’ claims were grant of summary judgment and its denial of costs and fees. unreasonable, frivolous, without foundation, or in bad faith.
(J.A. at 265.) Furthermore, because the HCQIA immunity issue decided the case, the district court never determined whether plaintiffs had sufficient evidence to reach a jury on their claims related to antitrust, COBRA, EMTALA, breach of covenant of good faith and fair dealing, or defamation. As such, the district court could not say that those claims lacked foundation.
NOTES
[*] The Honorable Robert H. Cleland, United States District Judge for the Eastern District of Michigan, sitting by designation. 1 Nos. 01-6190/6217 Meyers, et al. v. Columbia/HCA 3 4 Meyers, et al. v. Columbia/HCA Nos. 01-6190/6217 Healthcare Corp., et al. Healthcare Corp., et al. I. FACTS
[1] disciplinary and corrective action taken against him while working in Virginia,
[3] and the quality of his patient care. At On March 25, 1991, Meyers applied for medical staff this point, pursuant to LMH Bylaws, the Credentials
[1] W e find the district court’s statement of facts to be accurate, and sabotaged by a group of Lexington physicians. On the other hand, a letter accordingly adopt it as our own. from CRMC’s adm inistrator suggests that M eyers left because he did not work harmoniously with other members of the hospital staff. The
[2] administrator also no ted that he did not maintain m edica l records in Meyers had p rivileges from 1 981 -82 at The M emo rial Ho spital in accord ance with staff rules and regulations. No rth Conway, New H ampshire, but maintains that he was forced to leave due to “po litical dynamics” upon establishing his “large, successful
[3] practice.” Meyers then wo rked as a trauma surgeon from 198 3-84 in Fort Meyers was censured and p laced under a corrective action plan Bragg, North Carolina. From 1984-88 , Meyers practiced in Spruce Pine, (“CAP”) by the Medical Society of Virginia Review Organization No rth Carolina until he got “burned out.” In 1988, Meyers moved to (“MSVR O”) for failure to keep sufficient medica l records. Meyers argues W ytheville, Virginia, and practiced at W ythe County Community that he completed the CAP and his license was in no way affected by the Hospital (“WCCH”). He was suspended from WCCH in July 1989. MSVRO. Defendants maintain that he failed to disclose this information Meyers was later reinstated to the WCC H staff but took a leave of absence by answering “no” to the following questions on his initial application: and voluntarily left the hospital. Meyers then obtained provisional “Has your license to practice medicine in any jurisdiction ever been privileges in 1990 at Clark Regional Medical Center (“CRMC”) in limited, suspended or revoked?” and “Have you ever been denied W inchester, Kentucky. Meyers alleges that he left CRM C because his mem bersh ip or renewal thereof, or been subject to disc iplinary action in plan to reestablish the practice of a departed orthopedic surgeon was any medical organization?” Nos. 01-6190/6217 Meyers, et al. v. Columbia/HCA 5 6 Meyers, et al. v. Columbia/HCA Nos. 01-6190/6217 Healthcare Corp., et al. Healthcare Corp., et al. concerns with the manner in which the peer review process a patient to the surgeon of his choice or to transfer the patient, was being handled. Three members of the Board, acting as a condescending remarks toward women, refusal to speak to a Credentials Committee, conducted an independent review. member of his surgical team during surgical procedures, and This committee discussed concerns about Meyers’ behavior several instances of throwing a scalpel during surgery. The and inability to get along with others in addition to questions committee informed Meyers that “[t]his behavior can have an about his surgical technique. The committee gave Meyers the adverse effect on the quality of patient care by inhibiting the opportunity to put forth additional information, but he ability of hospital personnel to perform optimally, by making maintained that there was none. The committee questioned it difficult for the hospital to retain qualified personnel, and Meyers about several incident reports concerning disruptive by interfering with the judgment of referring physicians.” behavior, his history of problems at other hospitals, his failure The committee further noted that Meyers’ behavior “can also to timely complete medical records, his hostility towards the disrupt the efficient operation of the hospital and the smooth operation room staff, reports of breaking the sterile field, and operation of the surgical department to the detriment of the his failure to provide appropriate coverage for patients while medical staff, the hospital, and the community.” As for his he was out of town. Meyers acknowledged that he had a failure to timely complete medical records, the committee personality problem. stated that “[d]elinquent medical records can put patients at risk by being inaccurate or incomplete if needed to assist in At the same time, the Kentucky Cabinet for Human later diagnosis and treatment of a patient.” As for quality of Resources Drug Control Division was investigating Meyers’ care, the committee noted that Meyers had failed to comply