Meyers v. Columbia/HCA Healthcare Corp.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Meyers, et al. v. Columbia/HCA Nos. 01-6190/6217

ELECTRONIC CITATION: 2003 FED App. 0298P (6th Cir.) Healthcare Corp., et al.

File Name: 03a0298p.06

Before: CLAY and GIBBONS, Circuit Judges;

CLELAND, District Judge.*

UNITED STATES COURT OF APPEALS

_________________

FOR THE SIXTH CIRCUIT

_________________ COUNSEL

ROBERT H. MEYERS , M.D., X ARGUED: Tom Curtis, CURTIS & KIRKPATRICK,

Individually and as a - Pasadena, California, for Appellants. Charles J. Cronan IV,

- STITES & HARBISON, Louisville, Kentucky, for Appellees.

Partnership; MARY MEYERS , ON BRIEF: Tom Curtis, CURTIS & KIRKPATRICK,

- Nos. 01-6190/6217

M.D., Individually and as a - Pasadena, California, for Appellants. Charles J. Cronan IV,

Partnership, > Margaret R. Appenfelder, STITES & HARBISON,

,

Plaintiffs-Appellants/ - Louisville, Kentucky, for Appellees.

Cross-Appellees, -

_________________

-

v. - OPINION

- _________________

-

COLUMBIA /HCA

- CLELAND, District Judge. Plaintiffs-appellants Dr.

HEALTHCARE CORPORATION , - Robert Meyers (“Meyers”) and his wife, Dr. Mary Meyers,

et al., - initiated this action against multiple defendants after the

Defendants-Appellees/ - Board of Trustees of Logan Memorial Hospital denied

Cross-Appellants. - Meyers’ reappointment to the hospital’s medical staff. The

- district court granted summary judgment in favor of

N defendants, finding that they were immune under the Health

Appeal from the United States District Court Care Quality Improvement Act (“HCQIA”), 42 U.S.C.

for the Western District of Kentucky at Bowling Green. § 11101 et seq. Defendants moved for an award of costs and

No. 97-00219—Joseph H. McKinley, Jr., District Judge. attorney’s fees under the HCQIA, and the district court denied

their motion. Plaintiffs appeal the grant of summary

Argued: May 2, 2003 judgment; defendants cross-appeal the denial of costs and

fees. We affirm the judgment of the district court on both

Decided and Filed: August 20, 2003 issues.

*

The Honorable Robert H. Cleland, United States District Judge for

the Eastern District of Michigan, sitting by designation.

1

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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

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

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 T he M emo rial Ho spital in

No rth Conway, New H ampshire, but maintains that he was forced to leave accord ance with staff rules and regulations.

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?”

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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

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

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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, 322 (1986). The non-

including hospital administrators, members of LMH’s moving party must then produce specific evidence that

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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

the plaintiff.” Id. at 252. The court must view the evidence Specifically, persons participating in a professional review

in the light most favorable to the non-moving party. action are entitled to immunity if the action is taken:

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986). On appeal, this court reviews an order (1) in the reasonable belief that the action was in

granting summary judgment de novo. Williams v. Mehra, 186 furtherance of quality health care;

F.3d 685, 689 (6th Cir. 1999). The appellate court uses the

same legal standard as used by the district court to determine (2) after a reasonable effort to obtain the facts of the

whether summary judgment is appropriate. Id. matter;

The district court’s denial of Defendants’ request for (3) after adequate notice and hearing procedures are

attorney’s fees is reviewed for abuse of discretion. Muzquiz afforded to the physician involved or after such

v. W.A. Foote Memorial Hosp., Inc., 70 F.3d 422, 432 (6th other procedures as are fair to the physician under

Cir. 1995). the circumstances; and

IV. DISCUSSION (4) in the reasonable belief that the action was

warranted by the facts known after such reasonable

A. The district court’s grant of summary judgment in effort to obtain facts and after meeting the

favor of Defendants on the basis of HCQIA immunity requirement of paragraph (3).

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

4

(A) to determine whether the p hysician may have clinical

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).

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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, 1333 (11th Cir. 1994)

(quoting Austin v. McNamara, 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 at 1323

listed in § 11111(a)(1). LMH is a health care entity and a (citing H.R. REP. NO . 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

The HCQIA creates a rebuttable presumption of immunity, quality of health care, but only that it was undertaken in the

forcing the plaintiff to prove that the defendant’s actions did reasonable belief that quality health care was being furthered.

not comply with the relevant standards. Id. § 11112(a) (“A Imperial v. Suburban Hosp. Ass'n, Inc., 37 F.3d 1026, 1030

professional review action shall be presumed to have met the (4th Cir. 1994).

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

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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

Committee heard testimony about twenty-two incident reports Similarly, Meyers failed to raise any genuine issue of fact

involving Meyers which documented loss of temper during with respect to the second element of HCQIA immunity. The

surgery, breaking the sterile field, failure to take and inquiry is whether the “totality of the process” leading up to

document histories before patients were sedated for surgery, the professional review action evinced a reasonable effort to

and other problems.5 This evidence was also considered by obtain the facts of the matter. Mathews v. Lancaster Gen.

the Board. The Fair Hearing Committee noted that its Hosp., 87 F.3d 624, 637 (3d Cir. 1996). In this case, there

decision was based on Meyers’ temper tantrums, his use of was an exhaustive review process. As the district court noted,

coercive tactics, delinquent medical records, his inability to Meyers was reviewed by both the Credentials Committee and

work with others, and unethical conduct. As the district court the MEC, as well as by a committee of three Board members

held, these reasons are in furtherance of quality health care, who conducted an independent investigation. This three-

despite the fact that no patients were actually injured. person committee questioned Meyers and gave him an

“Quality health care” is not limited to clinical competence, opportunity to provide them with additional information. It

but includes matters of general behavior and ethical conduct. then made a recommendation to the Board, which voted to

See Bryan, 33 F.3d at 1334-35 (finding that the termination of deny Meyers’ appointment to the active staff. Thereafter, the

physician’s privileges was “taken in reasonable belief that the Fair Hearing Committee met on eleven occasions and heard

action was in furtherance of quality health care” where testimony from thirty-five witnesses. Meyers was represented

physician had “exhibited a pattern of unprofessional conduct by counsel, given the opportunity to present witnesses,

over a period of many years,” “was disruptive,” and affidavits, and other documentary evidence, and given the

“interfered with the important work of other employees”); right to confront, examine, and cross-examine witnesses

Everhart v. Jefferson Parish Hosp. Dist. No. 2., 757 F.2d presented by LMH. Meyers disputes that a “reasonable

1567, 1573 (5th Cir. 1985) (“[Q]uality patient care demands inquiry” occurred, but his argument is limited to conclusory

statements attacking individual items of evidence considered

by the reviewers. He fails, however, to raise a genuine issue

5

Meyers argues that genuine issues of fact exist regarding the

to rebut the presumption that the professional review action

verac ity of the underlying allegations against him. Our review, however, was taken after a “reasonable effort to obtain the facts.”

is not directed at whether each of the complaints were undisputedly true,

but whethe r Defendants acted reaso nably 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.

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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

the medical staff who had not been asked to serve on the 4. [I]n the hearing the physician involved has the right

Committee. However, this evidence alone cannot show that to representation by an attorney or other person of

LMH violated its bylaws. the physician’s choice, to have a record made of the

proceedings, copies of which may be obtained by

the physician upon payment of any reasonable

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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 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

decision of the health care entity, including a F.3d at 843 (quoting Imperial, 37 F.3d at 1030).7 In view of

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

argument that notice was insufficient fails. Meyers makes one additional argument, contending that

“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, 916 (8th Cir. Accordingly, the process at issue was “peer review.”

1999)); Brader v. Allegheny Gen. Hosp., 167 F.3d 832, 843

Meyers also claims that “the Act does not give immunity to

persons, other than physicians and medical personnel,

6

performing peer reviews of physicians.” Appellants’ Brief at

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

extensive discussion of legislative history that he argues find no provision of the HCQIA which requires the

indicates the purpose of the Act is to provide immunity for professional review process to be conducted by

physicians participating in peer review, and not for others physicians only. In fact, the language of the HCQIA

involved in the review process. He argues that uses the word “person” rather than “physician” to

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

. . . .” 42 U.S.C. § 11111(a)(1)(A)-(D) . . . The Act is (J.A. at 11 (emphasis added).) The district court’s reasoning

ambiguous in defining to whom it grants immunity. The was correct, and we hold that the action in this case was a

word “person” in the Act is never defined, even though professional review action giving rise to HCQIA immunity

the Act defines many other words used. for the persons involved.

(Id. at 34-35.) Meyers thus implies that, because the review B. Cross-Appeal: The District Court Did Not Abuse Its

was not conducted by physicians, the review was not a Discretion in Declining to Award Attorney’s Fees

“professional review action” and thus the HCQIA does not

apply. Finally, Defendants contend that the district court erred in

denying their motion for costs and attorney’s fees. The

We disagree and find that the statutory language is not following provision of the HCQIA provides for fee-shifting:

ambiguous as to who is entitled to immunity or as to what

actions are covered. It is clear that every “person” who In any suit brought against a defendant, to the extent that

participates in a professional review action is entitled to a defendant has met the standards set forth under section

immunity. 42 U.S.C. § 11111(a)(1). Meyers argues that the 11112(a) of this title and the defendant substantially

word “person” should be read as “physician,” but there is no prevails, the court shall, at the conclusion of the action,

support for this assertion. Where the language of the statute award to a substantially prevailing party defending

is not ambiguous, it is unnecessary to resort to legislative against any such claim the cost of the suit attributable to

history. See, e.g., Garcia v. United States, 469 U.S. 70, 76 such claim, including a reasonable attorney’s fee, if the

n.3. In any event, Meyers’ legislative history discussion is claim, or the claimant’s conduct during the litigation of

limited to statements made about the general purpose of the the claim, was frivolous, unreasonable, without

Act, rather than the specific provision at issue. Accordingly, foundation, or in bad faith.

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

prevail in no way indicates that Plaintiffs’ claims were For the foregoing reasons, we affirm the district court’s

unreasonable, frivolous, without foundation, or in bad grant of summary judgment and its denial of costs and fees.

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.