*2 Plaintiff, now a Cincinnati, Ohio, citizen of Jerry, Bay, WI, Green Paul H. Grimstad cardiologist is a and cardiac surgeon (argued), J, Fehr, who was Nash, Lee Spindler, Dean associated with defendant Beilin Grimstad, Manitowoc, & between WI, Haddad, Linda November April 1972 and 1989. Beilin is Horty, Springer Mattern, & PA, Pittsburgh, located in Bay, Green Wisconsin. Dr. Harris for defendants-appellees. a, was member of Beilin’s staff and held FLAUM, Before CUMMINGS and Circuit cardiac, vascular, and thoracic privileges. Judges, WILL, Judge.* District practice His in large part consisted “high- is, risk” cardiac surgeries, operations on CUMMINGS, Judge. Circuit patients presented who of com- risk appeal This is an judgment plications or general death than pool granted in favor of the defendants Beilin patients. By cardiac plaintiff’s most of (“Beilin”) Hospital Memorial and Confiden- referrals were from another doctor on Bei- Review, (“CPR”) tial Peer Ltd. in diversity staff, lin’s Fergus, Dr. Peter apparently action,. 28 § U.S.C. 1332. The Court has was willing, than other doctors Green jurisdiction appeal over pursuant to 28 Bay to high-risk refer patients cardiac U.S.C. 1291. surgery. Because other surgeons cardiac Beilin often refused high- Plaintiff filed his appeal July notice of patients, Fergus in turn relied on 24, 1992, which assigned was docket number operate.on Dr. Harris to them. Ex- 92-2785 Judgment Court. was en ¶ hibit C at tered on the district court’s July orders on appeal 1992. The was therefore filed part Due in high to the level of days three prematurely because there complications was among plaintiffs patients judgment a final under Fed.R.Civ.P. complaints and in nursing staff cured, however, This defect was concerning when erratic dur- behavior judgment the final entered. Fed. surgery, hospital undertook several 4(a)(2); R.App.P. Metropolitan Ins. Co. surgeries. reviews of his In October 1988 Life Common, Estate 929 F.2d 1220 Gifford, Dr. Stewart Chairman of the De- Cir.1991). Plaintiffs second of appeal, notice partment of Surgery but not himself car- August filed assigned 1992 and docket diologist, eight plaintiffs surgical reviewed 92-2942, number duplicative of mortalities and concluded that there was no * Will, Hon. Hubert Judge Illinois, L. District of the North- ern sitting by, designation. District of prepa- phase was fourth of these treatment evidence Although ordi- report. of a written By ration excellent. anything prior make narily recommendations mortali- March of in this report, case completion they had higher than were even ty rates *3 immediately recommended team the review ad hoc committee internal An in 1988. been at Beilin surgical privileges Harris’ practice. The that Dr. his investigate was formed rendered the care suspended because and the be concluded committee Consistent unsafe. was patients were his patients cardiac Dr. Harris’ rates for infection day recommendation, very next that an with this recommended high and unusually Arndt, told President, Thomas Mr. cases. review his Beilin’s team investigative outside immediately he did requested that Dr. Harris addition, committee thoracic privileges, surgical high- resign on all of his operating from refrain Dr. Harris cardiac, they would well as of until the conclusion and vascular patients cardiac risk signed result, Dr. Harris summarily suspended. Dr. John As a be outside review. Staff, resign purported Medical he in which Martin, a letter President voluntarily. him that unless and privileges Dr. Harris told

met with high- operating on from agreed to refrain he 1989,was in June report, made final by (to Dr. Fer- determined patients be recommendations the oral with consistent surgical his physician) referring gus, Dr. It concluded investigative team. suspended. temporarily privileges under patients providing was not Harris high-risk on agreed not Dr. Harris and judgment adequate level an care with emergencies. except in patients technique was surgical ability. His technical CPR, used, which commonly retained 1989 Beilin April those most different in Ke- pa- place of business complications in several principal causing its probably per- Wisconsin, Dr. Hams’ nosha, to review excessive experienced His tients. comprised CPR, organization experi- an of them formance. than 76% and bleeding, cre- and academic medical with Its physicians final complications. post-operative enced of health dentials, performance reviews Dr. revoke that Beilin was recommendation States. throughout the United providers care privileges. cardiac phases: deter- of four consists A CPR review op- subsequently was Harris Dr. frame to be time mix and case mining the hoc the ad both with to meet portunities records; reviewed; reviewing administrative to dis- team the CPR and committee selected records of medical inspection on-site informed report, final and cuss report a final team; preparing by the bylaws to a hospital’s by the entitled he was conclusions, and rec- findings, includes the formal hearing. He declined formal proce- with this Consistent ommendations. Hohol, Beilin’s with Mr. meet hearing but did all of dure, first decided CPR Services, Mr. of Medical Staff President Vice in- In its on-site surgeries. plaintiffs team, CPR of the and two members Arndt surgeries ranked spection CPR attorney by accompanied both five, indicating a one one a scale of is- meeting CPR full-day a After Fergus. or a three quality and care of that concluded follow-up report sued care. Plaintiff substandard representing car- performing incapable Dr. Harris forty-eight or two a one ceived period During this safely. surgery diac CPR, three or by and a reviewed surgeries conditionally reinstated hospital In eleven remaining nineteen. higher for pending privileges thoracic vascular use of questioned team cases Although procedures. of those It concluded pump. intra-aortic balloon Harris was ultimately that Dr. found reviewed, sixty-seven cases of the that out thoracic vascular performing capable of tech- questionable displayed Harris resigned February surgeries, and an operations nique in fourteen operated He never as well. those nine others. Six- technique in inappropriate May after at Beilin in death. resulted operations of the teen eventually filed this suit in federal argue Defendants that when the district diversity court based parties, alleg- court so held it did not have the benefit of alia, ing, inter that Beilin breached its em- McNamara, Austin v. 979 F.2d 728 ployment contract with revoking his Cir.1992). That case held “professional surgical privileges without affording him the review actions” under HCQIA “com- required hospital’s bylaws mence” not when investigation itself com- (Amended Complaint, One), Count mences when “action” is taken with re- undertaking a bad faith review of his spect physician’s privileges based on surgical performance, also in contravention of the investigation. Id. at 736-737. In that (Amended bylaws Complaint, Count case, while professional investigation Three). CPR, respect With al- prior commenced to the effective date of the *4 leged tortiously that it interfered with his HCQIA, the review that investigation, (Amend- relationship contractual with Beilin which determined the status of phy- Two).1 Complaint, ed Count sician’s continuing privileges, commenced The pleaded, days among defendants three other after the effective date of the things, HCQIA. the Id. qualified affirmative defense of 737. The Austin court immunity. peer .Both Wisconsin review held that HCQIA did statute and federal law immunize from to civil immunize the physi- defendants from the liability all participants in peer medical Id. at 737. cian’s suit. that views meet certain threshold conditions. This Court need express not opinion as 146.37(1) (West § 1989);2 Wis.Stat.Ann. peer to whether activity review “commences” 11111(a). § U.S.C. granting its decision when investigation commences,' itself defendants’ motion for judgment held, court below or when action is taken on the first three plaintiffs counts of Amend- as a result of that investigation, as the Aus- Complaint, ed the district correctly de- tin case, court held. In this even if the termined that the federal inapplica- statute is Court were to adopt the reasoning of the ble in this case and analyzed defendants’ Austin court, HCQIA still would not to immunity only claim under the Wisconsin apply Dr. to Harris’ suit. Dr. Harris was statute. Defendants challenge now that ' encouraged resign to privileges at Beilin interpretation court’s U.S.C. 18, 1989, on May day after CPR conduct- 11111(a). § ed its investigation on-site orally and recom- statute, The federal the Health Care that mended be termi- Quality Improvement (“HCQIA”), Act ap Clearly, nated. under the reasoning of Aus- plies to civil actions only based state law tin, this is when action was first taken with professional when the review actions com regard to privileges at Beilin. Be- menced on or after October unless HCQIA cause the does not apply to actions legislature the state opt-in elects early in commenced prior Wisconsin to October HCQIA. 11111(c). U.S.C. The 1989 it does not immunize defendants from legislature Wisconsin opt-in did early. not suit. Beilin’s Because Hospital “[t]he could be deemed have early commenced review as as Octo Defendants note that Dr. could still Harris ber, 1988, it appeal when enlisted Dr. Gifford’s May the. proce- assis action under the in reviewing files,” tance dures provided by bylaws, and that it district court HCQIA held that the did not was hot clear as late as November apply to this suit. R. 52 at 19 n. 15. going whether he was to do so. For this addition; 1. In plaintiff alleged that Beilin unlaw- sue summary judgment this of the appeal fully employment and in of his breach contract through Counts One Three. privileged disclosed régarding information (Amended peer medical Complaint, 2. Section 146.37 was amended effective 1990 Five). Counts Four grant- The district court (1) and subsection was renumbered as Section summary judgment ed of the favor defendants 146.37(lg). The amendments do not affect the One, on Counts By stipulation Two and Three. rights parties of the in this suit. parties Counts Four Five were dis- prejudice missed with pur- enable assumption therefore, proceed, to We the Court like would defendants reason binding agree- if Beilin breached even this case. applies in HCQIA hold it did differently than to treat ment extension absurd require an would This suit review, from immune it is peer review that a might be It Austin. good faith.3 acted in it responsible when commences action prelim- of a results body begins pro Statute Review Additionally, the Peer cry from far this investigation, person inary good faith “The vides “com- action holding that (1)'... presumed shall sub[ ]. specified finally ends. when asserts mences” Any person action. any civil not acted person has such a apply to HCQIA does Because assertion proving the burden ease, the issue this actions defendants’ Wis.Stat. convincing evidence.” clear Wisconsin is whether the Court before 1989). 146.37(1m) (West If suit §Ann. to immunize operates statute Hams trial, then proceed to were for breach suit by clear proving the burden con- interference tortious contract convincing evidence it does. holdWe tract. good faith peer review conduct *5 claims could contract tort and before Analysis judgment, howev At considered. (“Peer Stat- Review statute The Wisconsin only that a rational er, demonstrate he must acting in ute”) person “[N]o provides demonstrated he had find that jury could or in the review participates good faith convincing and clear good faith of lack pro- care of the services health of evaluation Inc., Liberty Lobby, v. Anderson evidence. damages as a any civil liable for ... is viders 252, at 2512.4 S.Ct. 106 U.S. at 477 person such any act or omission of result Re- in the Peer defined faith is not Good evaluation.” review or of such course in the the does direct statute 1989). The 146.37(1) (West This view Statute. Wis.Stat.Ann. in participant the consider whether arising court to in cases affords statute health prevent sought to the “has review the an affirmative reviews of medical out exam- from its counsel ... and provider care liability if review the to civil defense in the used and records Kozarek, ining the Qasem documents good faith. conducted wit- evaluation, presenting from Cir.1983). or The 1172, 1179 F.2d cir- facts pertinent and nesses, establishing directly inter- eases that the two *6 other a factors court should consider as bear- required him “voluntarily” to resign) his tho good faith. 716 F.2d at 1177-1178. racic and vascular following CPR’s Limjoco established that the defendants’ mo- review of his cardiac practice, and that Bellin tives in conducting peer review are relev failed to afford him all of to inquiry. vant to 703, 169 Wis.2d which he was entitled under bylaws. N.W.2d In 567. that plaintiff case the at- plaintiff’s If argument peer is that tempted a review statutory rebut the presumption perfect must be good of order to alleging faith been con- peer that the re- good faith, ducted in clearly argument viewers his grudge against had a him and that fails. imperfect An peer could, they review gain stood to financially how- if he were ever, constitute evidence from removed which a fact- from the clinic at which prac- he finder could good infer lack of 713, ticed. Id. faith. On the at 486 N.W.2d 567. The hand, one a might be so deficient acceptable treated this as an argument thát good lack of faith addressing could be inferred good faith, the issue of but held simply from the that conduct plaintiff review itself. had supported his hand, On the other claims even a enough review did not evidence to withstand sink to depths, such defendants’ inference of lack motion for summary judgment. good faith could be 713-715, made if plaintiff Id. at N.W.2d 567. would adduce some additional evidence to Other courts interpreting review stat- show that defendants did not conduct them- utes similar to Wisconsin’s have also held selves in faith. “good faith” is at subjec- least See, tive inquiry. e.g., Campbell v. Surely St. plaintiff could meet this burden Mary’s Hospital, 388-389, Minn. 252 a ways. number In this case Dr. Harris (1977); N.W.2d 586-587 attempted Gilbert Board has to demonstrate that defen- Examiners, Medical 155 Ariz. improper dants had an in conducting motive 745 P.2d (App.1987); Scappatura v. surgeries. of his speculates He 5. Plaintiff's reliably distinguish briefs do not plaintiff's arguments his against advanced both against claims Beilin against his claims parties. possible CPR. opinion Wherever interprets There- act did not high reflecting Beilin's numbers raw ac- fore, unless by the United published figures deficient were so regarding Human tions of Health Department States an inference they would allow standing alone Financing Administra- Care Health Services’ faith, argument public (“HCFA”) might of lack alarm tion than ex- Rather line. must fail. Beilin’s bottom affect its sur- figures reflect plaining claim that support his Beilin argues, he population, patient geons’ surgical reviewing his not act from the statistics his to remove preferred reli- places most plaintiff performance, to termi- reason up a trumping equation perform failure defendants’ ance on him. nate high seemingly analysis his statistical raised to one similar argument This average) national (three times to four 703, 486 N.W.2d Limjoco, 169 Wis.2d pa- his mortality rates. alleged lack case the In that post-operative risk of at tients were based reviewers part of faith on general death than complications grudge against they had a claim the defendants but that population, patient depar- gain from his they stood and that into account. take this properly did not worked which clinic at ture from that a formal believes particular, referred be patients would per- ought have been claim, although supported This them. (comparing “raw data” on the formed not to testimony, was held deposition some He average). national mortality rate judg- motion defendants’ defeat hoc committee the ad notes that testimony is not deposition “[TJhis ment. perfor- of his evaluation outside quested an grudge or that a an inference enough to raise that a statistician asked specifically mance 713-714, N.W.2d Id. exists.” vendetta team, and that in the included at bar In the case in order hospital that informed Fergus support of testimony in deposition no almost properly, surgeries evaluate fig- the HCFA only offers He position.6 consid- had to be population high-risk patient to infer that urges this Court ures stratified. ered and order him in improperly terminate *7 however, clear, “con- information what Limjoco the In It is not them. improve conveyed to make Limjoco analysis to would fail[ed] elude[d] during fact this disputed team, issue faith a because good in the CPR Sehencks’ conelusory state- no statistical plaintiff offer[ed] litigation because the Scheneks’ grudge According to the defen- about analysis ments of his own. estab- present not requested He gain. [did] hoc committee dants,

economic ad bad inferences which outside facts from on the lished be included a statistician 714-715, 486 Id. at drawn.” could be that a statis- it believed team because holds that likewise help Court 567. This would N.W.2d Harris’ cases analysis Dr. tical insuffi- conelusory statements mortality plaintiffs rates whether determine to defen- genuine issue popula- to raise patient cient of his due to the nature were motives. surgical skills dants’ to his own rather due tion or CPR, employees The techniques. genuine raised has not plaintiff Because medical was business whose motives, he has concerning defendants’ issue analysis a statistical review, determined that, taken any evidence adduce failed Harris’ evaluating Dr. in helpful would not imperfect an allegations of together with his conelusory disputes, Plaintiff eases.7 claim that review, support take risk team did alleges that its also 7. CPR Dr. Fer- between a conversation does offer 6. He evaluating Hohol, plain- after into account factors cases, which occurred gus Mr. informal, case-by- surgical practice at did so already but that it ceased his tiff had acknowledged con- Beilin, apparently report was Hohol Mr. CPR's final in which case basis. surgical patient mortal- hospital’s overall that the high cerned ity inherent in factors average. national than rates were 115-118. E at Exhibit terms, using questionable CPR was correct about Harris was techniques whether explanation attempts surgery, no of what such an cardiac elected to err on the side analysis would have revealed. In the ab- of in requesting caution him to refrain from performing that such an surgeries sence of evidence related until a review defendants, helpful would even have been of his thoracic performance and vascular Furthermore, let alone crucial to a fair evaluation of his could be undertaken. shortly skills, surgical plaintiffs plaintiffs resignation mere desire that the after forced of his vas- been conducted cular review would have different- and thoracic Belhn reinstated them, ly support not request, pending does an inference that defen- at his a review. This dants lacked faith. behavior is not indicative lack of faith. additionally Plaintiff relies on the inclusion addition,

of two 1989 mortalities on-site following makes the points support view to show defendants’ lack of of his contention that the initially had CPR selected was not conducted in faith: (1) reviewed, surgeries expert, Mayer, as the time frame to be Plaintiffs contends day spent when the review team arrived at Beilin that the one in reviewing CPR hospital requested it to review the charts completely charts on 67 was inade- surgical quate, on two 1989 mortalities. Plaintiff and that at a minimum per one hour argues necessary these mortalities were “hand chart was proper draw the con- (2) picked” Beilin to make look bad. clusions from alleges them. Plaintiff responds Fergus Beilin that these deaths occurred Dr. uniquely qualified, was as the agreed after not to referring physician had for most of Dr. Harris’ high-risk patients, high-risk patients, cardiac and that it wanted explain the circum- surrounding CPR evaluate whether Dr. Harris was surgeries, yet stances their CPR acting in agreement. contravention of the did not interview him and Beilin was aware (3) of that. CPR’s team met with Dr. Harris Because has not countered Beilin’s only briefly during investigation. its on-site plausible explanation anything but a alleges He that he discouraged allegation misconduct, bare the Court can- preparing for the interview or bringing rec- not infer lack of faith from this evi- (4) meeting. ords addition, dence. the inclusion of this data informing surgeon CPR one was to could have affected the outcome of CPR’s be evaluated inclined the team to find fault noted, investigation. As the district court performance. with his overall rate was excess percent of 20 whether or not the two out-of- The Court notes that of- sequence gave mortalities were opportu- “[I]t included. fered Dr. Harris the simply logical nity remedy many to conclude that alleged defects Fergus the CPR team knew about two more of Dr. present CPR’s review. Dr. dur- *8 mortalities, preju- day-long meeting their review was between Dr. Har- ris, attorney, diced.” R. 52 at 32. his two members the CPR team, and Messrs. Arndt and Hohol. At that notes also that CPR evaluat- meeting explain Dr. Harris also was able to surgeries, ed his cardiac not his thoracic and interpretation previously of the cases ex- surgeries, required vascular Beilin by amined CPR team. Had resign him to his cardiac also his processes availed himself of all of the privileges. thoracic and vascular When a Beilin, op- he would have had additional review of perfor- his thoracic and vascular portunities any to correct errors made in the made, finally mance was there was found to this, fight initial review. the Court deny privileges. be no reason to him those good cannot infer lack of faith from defen- argues He that this is evidence of lack of portion dants’ conduct of the on-site of CPR’s part. faith on responds Beilin’s review. surgeries may vascular and thoracic ulti- mately heart, great involve the vessels of the Plaintiff also that Beilin’s failure to having just and that been informed that Dr. forth in follow all the set population plain unusually high mortality but concluded that this did not ex- rate. FLAUM, Judge, concurring. Circuit it failed to act bylaws is evidence that he became entitled alleges faith. He opinion join judgment and I this court’s early bylaws as process” under “due sepa- affirming court. I write the district him to Martin asked when Dr. April concern as to rately only express some high-risk patients, operating on refrain possible a lack of perceive I to be what to which he was entitled process but that the part the defendants. thoroughness on the particular always afforded him. relatively mean- percentages Raw alone are uni- alleges Mr. Arndt took Dr. Harris sophisticated statistical ingless without resign him to encouraging action lateral wary creating analysis. We should be following the CPR re- surgical privileges high- physicians to abandon incentives view, bylaws re- of Beilin’s in contravention drawing our unwarranted hospi- to consult with quiring Mr. Arndt data. Howev- inferences from raw numerical restricting before tal’s Executive Committee er, court, question why I with all like the again, practice. Once physician’s allegations has offered no statis- for the most *9 purpose other than the primary review is “a No. 92-2989. 21, citing patients.” 52 at safeguarding of Appeals, Court of United States 1195; Scappatura, 120 Ariz. at 584 P.2d Seventh Circuit. Gilbert, Ariz. at 745 P.2d 617. accord reasonably it is clear that Beilin this ease Argued Feb. perceived pose Dr. Harris to a threat Decided Jan. pur primary patients, and that defendants’ peer re pose throughout the conduct of the safeguarding them. The decision

view was

below is affirmed. notes Court refuting cumstances, testimo- or questioning prior to Review Statute preting the Peer evidence, confronting and cross-exam- ny and for tortious with claims dealt both case bar receiving a from or ining witnesses concerning adverse not with claims and interference recommendation or Schenck, report final copy of id.; contract, Limjoco v. breach Wis.Stat.Ann. reviewing organization.” re- (App.), N.W.2d 567 169 Wis.2d 1989). (West 146.37(2) These consider- (Wis.1992), § denied, 491 N.W.2d view however, bearing factors, ations sounds plaintiffs suit case in this while possible It is good faith. the issue party to tort. as in Neither as well contract proce- all plaintiff afforded that the statu- argued, suit this in the statute protections listed dural to contract. not extend immunity does tory standard, factual to resolve it failed "parlici- ment and Beilin CPR that both is clear 3. It favor, that it failed plaintiff’s disputes in of Dr. Harris evaluation” or pate[d] in favor of Peer of the inferences the terms reasonable within draw all fall "peer summary judgment opinion the term grant of In plaintiff. Statute. this Because a Review review” formal both CPR's include not scruti- will Court need this de novo is reviewed respect to it. taken closely actions as reasoning Beilin's as court's the district nize distinguish actions necessary CPR’s plau- itWhen where he makes urges. In plaintiff cases Beilin’s, to "CPR's opinion will refer court failed argument that the district sible review.” in- disputes reasonable and draw resolve factual favor, opinion reflects this in his ferences argues district appeal plaintiff. urged by facts and inferences summary judg- proper apply the did not Qasem, did not act in Baptist F.2d at Phoenix, Hospital 120 Ariz. 584 P.2d (App.1978). While the statutes at issue in these cases both case, In this had hearing the formal that Beilin explicit “malice” provision that is lacking offered Dr. Harris after “voluntarily” he statute, Qasem Wisconsin treated signed privileges May and that them being relevantly similar to declined, Wiscon he included procedural protec- sin’s Peer Review Statute for purpose tions listed in the Peer Review Statute. This determining its “legal effect.” 716 F.2d at Court must therefore look elsewhere for evi- 1176-1177. dence that the defendants did not act in respect faith with plaintiff. Qasem, See In the case at bar relies on 716 F.2d at 1180 (noting in that alleged several defects in CPR and Beilin’s case had advantage failed take support review to his claim that defen process internal review available him un- dants did not act in faith.5 Plaintiff der hospital’s bylaws, defendant im- complains neglected that CPR to perform a plying that offering plaintiff those 'on his mortalities order was an indication that hospital had acted to determine the effect of patients’ faith). factors on the rate. He notes that Only two directly eases have interpreted Beilin asked CPR to include two of his 1989 the Wisconsin Peer Qasem Review Statute. review, in its mortalities after CPR had de established that a might be con- termined to review his 1988 cases. He ducted otherwise than in even- raises other issues regarding adequacy statutory procedures are afforded the addition, on-site visit. reviewee, but did not -directly address what ought (or suspended

Notes

notes Bellin this Court Opinion of the analysis tical of his own. See bylaws, that it offered follow its own Court, p. noting per- ante 1087. While many procedures than he actu- more forming proper utilized, procedures com- ally and that those substantially strengthened defendants’ have factors listed the Peer ported with the defense, good faith I cannot find this defect good faith. as indicative of Review Statute alone as sufficient indication that allegations, taken indi- None “good faith” absent further evi- lacked aggregate, would allow a vidually or in the Therefore, recognizing by plaintiff. dence jury that Beilin and to conclude reasonable certainly im- could have that defendants not conduct themselves CPR did Harris, investigation their proved their of Dr. best, plaintiff has demonstrated faith. At meet, marginally, appear to albeit actions a triable issue of fact as there is statutory presented the State’s standard might investigation whether CPR’s presumption of faith. thoroughly. But an conducted been con- imperfect investigation does not itself faith, conducted bad stitute one clearly actions do not sink and defendants’ good faith could a level that lack of such peer solely from the conduct of the inferred O’CONNER, Plaintiff- James plaintiffs allegations that Because review. Appellant, had a motive to skew the by any against unsupported evidence, he has faded to meet his credible COMPANY COMMONWEALTH EDISON demonstrating that a reasonable burden Services, Inc., and London Nuclear jury did not could find that the defendants Defendants-Appellees, act below, referring The court America, United States Wisconsin’s, similar to concluded statutes Intervenor-Appellee. faith” in context of a that “bad