Appendix — Bryan v. James E. Holmes Regional Medical Center
Supreme Court brief1995
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PIL&®D
941323 FrB 3 1995
GP Ace-o-zHe-CLeRk
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1994
FLOYD T. BRYAN, and
FLOYD T. BRYAN, M.D., P.A., Petitioners,
Vv.
JAMES E. HOLMES REGIONAL MEDICAL CENTER,
a/k/a HOLMES REGIONAL MEDICAL CENTER, INC.,
Respondent.
APPENDIX TO
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
VOLUME I
Jennifer S. Carroll
Metzger, Sonneborn & Rutter, P.A.
1545 Centrepark Drive North
West Palm Beach, Florida 33401-7414
(407) 684-2000
Counsel of Record —
George H. Moss
Moss, Henderson, Van Gaasbeck,
Blanton & Koval
Post Office Box 3406
Vero Beach, Florida 32964-3406
il
INDEX TO APPENDIX
VOLUME I
Document Reference
DOCUMENTS PURSUANT TO RULE 14.1(k)(i)-(iv)
Opinion - (Bryan v. HRMC,
Ce Be Se ee | A.1-52
May 20, 1992 Order on Summary
Judgment, U.S. District Court,
a A.53-73
August 27, 1992 Post-Trial Order,
U.S. District Court,
rr A.74-81
July 7, 1992 Motion for
Judgment as a Matter of Law
Pursuant to Rule 50(b),
U.S. District Court,
ar A.82-86
December 9, 1994 Order Denying
Petition for Rehearing,
Eleventh Circuit Court of Appeals ............ A.87-89
June 22, 1992 Judgment,
U.S. District Court,
ae A.90-91
June 17, 1992 Special Verdict Form,
U.S. District Court,
I oi yo ee ea bee ee A.92-93
ill
INDEX TO APPENDIX
Document Reference
EXCERPTS FROM RECORD ON APPEAL
Excerpts of Trial Transcripts
GUD SIS SERED an te veveuaeeree eee A.94-95
Curriculum Vitae of Floyd Talmadge
Bryan, M.D; Excerpt of Trial
Transcripts (p.809); Excerpt of May 20,
1991 Deposition Transcript of Olivia
Ayers, R.N. (pp.35-36); Excerpt of
February 19, 1998 Executive
Commnsiiee DEMIR, 2.0 6s6 bac din taken neues A.96-106
Excerpts of Trial Transcripts
(OD.2 PEE“ P OR, EPEEE 4.46 vk AOS Pewee A.107-108
Special Verdict Form submitted by
Defendant James E. Holmes Regional
Medical Center regarding Health
Care Quality Improvement Act ............... A.109
Excerpt of Trial Transcripts
(PATON) | oo cies ba aed saa eee A.110
Brief of Amici Curiae filed by the
American Medical Association and
the Florida Medical Association ........... A.111-127
Excerpt of August 28, 1990 Chanda
panel transcripts (p.159);
Excerpt of Tria! Transcripts
(pp. 1348,1463,1464,
LIPPER MTEGE CR) oan 004 - See ee A.128-13
iv
INDEX TO APPENDIX
Document Reference
Excerpts of Trial Transcripts
(pp. 1820-1821,1467-1470,
aches se ek ees aes eons A.136-145
Excerpt of Trial Transcripts
(pp. 1167,1169,1171-1172);
Excerpt of HRMC Product
Line Report (pp.32-35) ... 6... ee eee eees A.146-150
Excerpts of May 20, 1991
Deposition Transcript of
Olivia Ayers, R.N
SE A.151-153
June 5, 1989 Executive Committee
Minutes; Excerpt of August 28, 1990
Chanda Panel Hearing Transcripts
(p.37); Excerpt of Trial
Transcripts (pp.730-732) ......-.+e+e eee: A.154-159
October 9, 1989 Executive
ES OE OTE A.160
October 19, 1989 Board letter;
December 13, 1989 Letter to
Board from Dr. Bryan; Excerpts
of Trial Transcripts
(pp.1120-1124) ....... cece eee eee eee A.161-171
\seienieaneee eal
} Vv
INDEX TO APPENDIX
VOLUME II
Document Reference
Excerpts of Trial Transcripts
(PP-OUZ,1356-198S7) woo. i ce cc cenck. A.172-174
Excerpt of May 20, 1991
Deposition Transcript
of Olivia Ayers, R.N. ne. 4-5 oi, (oet ae ene A.175
Charts Comparing Number of
Surgeries (General Surgery
and General/Vascular Surgery,
1988-1991); Excerpts of Trial
Transcripts (pp.1353-1355) ............... A.176-180
Excerpt of Trial Transcripts
es oh oe ea i Se ee ee A.181
Excerpts of Trial Transcripts
(POOR, TRIM) «oa ees cen... A.182-184
Excerpts of Trial Transcripts :
(pp.800,2263-2266,2272-2274, !
2278-2280,2293,2298-2300,2395,
Se es eS ee A.185-202
Excerpt of May 20, 199]
Deposition Transcript
of Olivia Ayers, R.N. 8 eee hae A.203
Excerpts of Trial Transcripts
(pp.1545,1637,1641-1642) ............... A.204-207
Vi
INDEX TO APPENDIX
Document Reference
Excerpt of May 20, 1991
Deposition Transcript of
Olivia Ayers, R.N. (p.69-70);
Excerpt of May 28, 1992
Deposition Transcript of Dr.
Bittar (p.19); Excerpt of
August 29, 1990 Chanda Hearing
FOROS TUGRRCTINNS GBS) 2 cnc cecerveseses A.208-211
Excerpt of May 20, 1991
Deposition Transcript of Olivia
Ayers, R.N. (pp.47-48,50);
Excerpt of August 29, 1990
Chanda Hearing Panel
PE GE 0:5 9 ab on 09 ae week A.212-215
Excerpt of May 20, 1991 Deposition
Transcript of Olivia Ayers, R.N.
(pp.13-15,26,65); Excerpts of
August 29, 1990 Chanda Hearing Panel
Transcripts (pp.177-178);
Excerpts of Trial Transcripts
(pp. 522,533-534,537,775-777,778) ......... A.216-230
Excerpt of May 28, 1992 Deposition
Transcript of Dr. Bittar (p.38);
Excerpt of May 13, 1992 Deposition
Transcript of Philip Levitt, M.D.
(pp.24,27); Excerpt of May 20, 1991
Deposition Transcript of Olivia Ayers,
R.N. (pp.12,65); Excerpt of Trial
Transcripts (pp. 602-604,615-617,
EINE cu. s-0s 0 9s oss oe es ee ee es A.231-244
. —EE
Vii
INDEX TO APPENDIX
Document Reference
Excerpts of Trial Transcripts
(pp.930,810,670,933-934);
Excerpt of May 13, 1992 Deposition
Transcript of Philip Levitt, M.D.
(Ww 4 by?) ee ee I ee ae A.245-251
Excerpt of May 28, 1992 Deposition
Transcript of Dr. Bittar (p.21) ..--- +--+ series A.252
Excerpts of Trial Transcripts
(pp.383-384) ..... cece reece eres rece: A.253-254
Excerpt (pp.4-5) of July 10, 1989
Executive Committee Minutes);
Excerpt of August 27,1990 Chanda
Hearing Panel transcripts (pp.10-12,
19-21); Excerpt of August 29, 1990
Chanda Hearing Panel Transcripts
(OP. 2AB-BS1) 2c ccc ce wen sscesseesecss A.255-264
Excerpts of Trial Transcripts
(pp.375,995,1102-1104,1106) ...--+-++-++->: A.265-270
May 29, 1990 Executive Committee
Meeting Minutes ......---- eee rercres A.271-278
Excerpt of Bylaws of Holmes
Regional Medical Center 9: See ee oe A.279
Excerpts of Trial Transcripts
ae i Pere reer Tt Cer TEs. A.280
Vili
INDEX TO APPENDIX
Document Reference
March 2, 1992 letter to Floyd T.
Bryan, M.D. from Department of
Professional Regulation .. 6... ccc cc ees A.281
Excerpt of Bylaws of Holmes Regional
Co eS re er ee ie A.282
LEGISLATIVE HISTORY
H.R.5540, 99th 132 Cong., 2d Sess.,
sent. 17, I9GG CPROMMNDEE) 2.6 cw ccc cc ccevewn A.283
H.R. No.99-903, 99th 132 Cong.,
2d Sess., reprinted in 1986
a EE. Sos 6s a eae a ee eS A.284-305
Hearings on H.R. 5540 Before the
Subcommitt. on Civil and Constitu-
tional Rights of the House Committee
of the Judiciary, 99th 132 Cong., 2d Sess.
(Oct. 8 and 9, 1986), pp.66,77,86,90,
TRAE oS Oe ee ee a A.306-319
Excerpts of 132 Cong. Rec. H9957
(daily ed. Oct. 14, 1986)
(stebermemt Dy WOON) 6 6c kc cee ween A.320
Excerpts of 132 Cong. Rec. H9958
(daily ed. Oct. 14, 1986)
(statement by Waxman) .................... A.321
iX
SS ae
INDEX TO APPENDIX
Document Reference
Excerpts of 132 Cong. Rec. H9959
{ (daily ed. Oct. 14, 1986
(statement by Waxman) ......---+e-eeees A.322-324
Excerpts of 132 Cong. Rec. H9960
(daily ed. Oct. 14, 1986
(statement by Edwards) .....----+e+eeeee A.325-326
Excerpts of 132 Cong. Rec. H9961
(daily ed. Oct. 14, 1986
(statement by Edwards) ......--- +++ eeee: A.327-328
Excerpts of 132 Cong. Rec. H11589
(daily ed. Oct. 17, 1986)
(statement by Waxman) .....---- +--+ +e: A.329-330
Excerpts of 132 Cong. Rec. H11590
(daily ed. Oct. 17, 1986)
(statement by Waxman) .......---+++++s: A.331-332
Excerpts of 132 Cong. Rec. H11591
(daily ed. Oct. 17, 1986)
(statement by Waxman) ......---- ee eee eee: A.332
OTHER STATUTES
42 U.S.C.A. § 11112(b),
Health Care Quality Improvement Act ....... A.333-335
|
A.1
BRYAN vy. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
Floyd T. BRYAN; Floyd T. Bryan, M.D., P.A.,
Plaintiffs-Appellees, Cross-Appellants,
V.
JAMES E. HOLMES REGIONAL MEDICAL CENTER,
a/k/a Holmes Regional Medical Center, Inc., Defendant-
Appellant, Cross-Appellee,
Raymond A. Armstrong, M.D., individually and as
Chairman, Department of Surgery, HRMC and as
Member of the Board of Directors, HRMC; Richard N.
Baney, M.D., individually and as Member of the Board
of Directors, HRMC; Michael J. Foley, M.D.,
individually and as Medical Director, HRMC; Michael
V. Gatto, individually and as Member of the Board of
Directors, HRMC; James E. Gray, III, individually and
as Secretary of the Board of Directors, HRMC; Joseph
A. Gurri, M.D., individually and as Chief of the Medical
Staff, HRMC; Martin W. Isenman, M.D., individually
and as Member of the Board of Directors, HRMC;
David M. Jones, Maj. Gen. (Retired), individually and as
Treasurer of the Board of Directors, HRMC; Michael F.
Maguire, individually and as Member of the Board of
Directors, HRMC; Fred L. McFarlin, individually and as
Member of the Board of Directors, HRMC; John E.
Miller, Ph.D., individually and as Second Vice Chairman
of the Board of Directors, HRMC; Barry A. Mills, M.D.,
individually and as Chairman, Executive Committee,
HRMC; Lyle Saltzman, M.D., individually and as
Member of the Executive Committee, HRMC; Val M.
Steele, individually and as Member of the Board of
A.2
BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
Directors, HRMC; Lynn Stoldt, R.N., individually and as
Head Operating Room Nurse, HRMC; Russell P.
Sullivan, Jr., individually and as Chairman of the Board
of Directors, HRMC; John F. Turner, Jr., individually
and as First Vice Chairman of Board of Directors,
HRMC; Rita Wheeler, R.N., individually and as
Operating Room Supervisor, HRMC, Defendants.
No. 92-2963.
United States Court of Appeals,
Eleventh Circuit.
Oct. 4, 1994.
Physician brought action against hospital that terminated his
staff privileges. The United States District Court for the
Middle District of Florida, No. 90-896-ORL-18, G. Kendall
Sharp, Jr., entered judgment in favor of physician, and hospital
appealed. The Court of Appeals, Tjoflat, Chief Judge, held
that hospital was immune from liability for monetary damages
under Health Care Quality Improvement Act (HCQIA).
Reversed.
1. Hospitals --6
HCQIA immunity is question of law for court to decide
and may be resolved whenever record in particular case
becomes sufficiently developed. Health Care Quality Im-
provement Act of 1986, §§ 402-432, 42 U.S.C.A. §§ 11101-
11152.
A.3
BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
2. Hospitals --6
Congress intended HCQIA to permit defendants in suits
arising out of peer review disciplinary decisions to file motions
to resolve issues concerning immunity from monetary liability
as early as possible in litigation process. Health Care Quality
Improvement Act of 1986, §§ 402432, 42 U.S.C.A. §§ 11101-
11152.
3. Federal Civil Procedure --2554
Hospitals --6
Although immunity under HCQIA may be determined at
summary judgment stage, resolution of that issue may be
deferred until or after trial if standards of summary judgment
rule cannot be satisfied; substantive standards under HCQIA
remain the same regardless of point at which immunity
determination occurs. Fed. Rules Civ. Proc. Rule 56, 28
U.S.C.A.; Health Care Quality Improvement Act of 1986, §§
402-432, 42 U.S.C.A. §§ 11101-11152.
4. Federal Civil Procedure --2554
District court should consider issue of HCQIA immunity
from damages at summary judgment stage; if it determines that
defendant is not entitled to such protection, then merits of case
should be submitted to jury without reference to immunity
issue. Fed. Rules Civ.Proc.Rule 56, 28 U.S.C.A.; Health Care
Quality Improvement Act of 1986, §§ 402-432, 42 U.S.C.A.
§§ 11101-11152.
A.4
BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
5. Federal Civil Procedure --2214
Hospitals --6
If there are disputed subsidiary issues of fact concerning
HCQIA immunity, such as whether disciplined physician was
given adequate notices of charges and appropriate opportunity
to be heard, court may ask jury to resolve subsidiary factual
questions by responding to special interrogatories; under no
circumstances should ultimate question of whether defendant
is immune from monetary liability under HCQIA be submitted
to jury. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A.; Health Care
Quality Improvement Act of 1986, §§ 402-432, 42 U.S.C.A.
§§ 11101-11152.
6. Federal Civil Procedure --2546
In ruling on motion for summary judgment on issue of
hospital’s immunity from liability under HCQIA, court’s
inquiry focuses on whether physician provided sufficient
evidence to permit jury to find that physician had overcome,
by preponderance of the evidence, presumption that hospital
would reasonably have believed that it had met standards of
immunity provision. Fed.Rules Civ.Proc.Rule 56, 28
U.S.C.A.; Health Care Quality Improvement Act of 1986, §
412(a), 42 U.S.C.A. § 11112(a).
7. Hospitals --6
If jury returns verdict awarding damages to disciplined
physician but evidence at trial conclusively demonstrates that
defendant has satisfied HCQIA standards for peer review
oe ad ram
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A.5
BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
procedures, thereby being entitled to immunity from monetary
liability, then court should grant posttrial judgment as matter
of law. Fed.Rules Civ.Proc.Rule 50(b), 28 U.S.C.A.; Health
Care Quality Improvement Act of 1986, § 412(a), 42 U.S.C.A.
§ 11112(a).
8. Hospitals --6
Decision by hospital’s board of directors to revoke
physician’s staff privileges, based on recommendation of peer
review panel and executive committee, was "professional
review action" within meaning of HCQIA. Health Care
Quality Improvement Act of 1986, § 431(9), 42 U.S.C.A. §
11151(9).
See publication Words and Phrases for other judicial
constructions and definitions.
9. Hospitals --6
Hospital’s board of directors acted as a "professional review
body" within meaning of HCQIA when they decided to revoke
physician’s staff privileges. Health Care Quality Improvement
Act of 1986, § 431(4)(a)(i), (11), 42 U.S.C.A. § 11151(4)(a)Q),
(11).
See publication Words and Phrases for other judicial
constructions and definitions.
10. Hospitals --6
Hospital’s termination of physician’s clinical privileges met
A.6
BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
requirements of HCQIA, entitling hospital to immunity from
liability for monetary damages; revocation was prompted by
reasonable belief that doing so would promote quality health
care, in view of physician’s pattern of unprofessional conduct
over period of many years, decision was made only after
physician’s conduct had been evaluated by executive
committee, peer review panel, and appellate review panel, and
hospital complied with statutory procedural requirements.
Health Care Quality Improvement Act of 1986, §§ 411(a),
412(a, b), 42 U.S.C.A. §§ 11111(a), 11112(a, b).
11. Hospitals --6
Hospital’s decision to terminate physician’s clinical
privileges was taken "in the reasonable belief that the action
was in the furtherance of quality health care," within meaning
of immunity provision of HCQIA; physician had exhibited
pattern of unprofessional conduct over period of many years,
was given series of opportunities to remedy his difficulties in
interacting with other staff members, and hospital concluded
that physician’s presence in operating room and patients’
rooms was disruptive and interfered with important work of
other employees. Health Care Quality Improvement Act of
1986, § 412(a)(1), 42 U.S.C.A. § 11112(a)(1).
See publication Words and Phrases for other judicial
constructions and definitions.
12. Hospitals --6
Hospital’s board of directors decided to terminate
physician’s staff privileges "after a reasonable effort to obtain
A.7
BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
the facts of the matter," within meaning of HCQIA immunity
provision; board terminated physician’s privileges only after
his conduct had been evaluated by executive committee, peer
review panel, and appellate review panel. Health Care Quality
Improvement Act of 1986, § 412(a)(2), 42 US.C.A. §
11112(a)(2).
See publication Words and Phrases for other judicial
constructions and definition.
13. Hospitals --6
Hospital’s board of directors satisfied procedural
requirements of HCQIA when terminating physician’s staff
privileges, as required to be entitled to immunity from liability
for monetary damages; hospital complied with notice
requirements, hearings were held in timely fashion in
accordance with hospital bylaws, and physician was afforded
full rights of representation, cross-examination, and
confrontation, Health Care Quality Improvement Act of 1986,
§ 412(a)(3), (b), 42 U.S.C.A. § 11112(a)(3), (b).
14. Hospitals --6
Hospital board’s decision to terminate physician’s staff
privileges was made "in the reasonable belief that the action
was warranted by the facts known," within meaning of HCQIA
immunity provision; physician conceded that incidents that led
to his termination actually occurred, and hospital had
reasonable belief that termination was warranted. Health Care
Quality Improvement Act of 1986, § 412(a)(4), 42 U.S.C.A. §
11112(a)(4).
A.8
BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
See publication Words and Phrases for other judicial
constructions and definitions.
Appeals from the United States District Court for the Middle
District of Florida. |
Before TJOFLAT, Chief Judge, DUBINA, Circuit Judge,
and DYER, Senior Circuit Judge.
TJOFLAT, Chief Judge:
In this case, a Florida hospital, after completing a lengthy
internal disciplinary »rocess, terminated the clinical staff
privileges of a staff physician. The physician sued the
hospital, alleging various state and federal causes of action and
seeking money damages. After an eleven-day trial, a federal
jury concluded that the hospital had revoked the physician’s
staff privileges in violation of its bylaws and awarded the
physician nearly $4.2 million in damages for breach of con-
tract. The hospital appeals that judgment as well as the district
court’s denial of its post-trial motion for judgment as a matter
of law, which contended that the hospital was immune from
liability in money damages under the Health Care Quality
Improvement Act of 1986 ("HCQIA"), 42 U.S.C. §§ 11101-
11152 (1988 & Supp. IV 1992), and under Florida law, Fla.
Stat.Ann. § 395.0193(5) (West 1993). Because we conclude
that the hospital was entitled to protection from monetary
liability under HCQIA, we reverse.
I.
Peer review, the process by which physicians and hospitals
A.9
BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
evaluate and discipline staff doctors, has become an integral
component of the health care system in the United States.
Congress enacted the Health Care Quality Improvement Act to
encourage such peer review activities, "to improve the quality
of medical care by encouraging physicians to identify and
discipline other physicians who are incompetent or who engage
in unprofessional behavior." H.R.Rep. No. 903, 99th Cong., 2d
Sess. 2, reprinted in 1986 U.S.C.C.A.N. 6287, 6384, 6384
[sic]. Congressional findings, recited in the text of the statute
itself, note that "[t]he increasing occurrence of medical
malpractice and the need to improve the quality of medical
care have become nationwide problems that warrant greater
efforts than those that can be undertaken by any individual
State," 42 U.S.C. § 11101(1), and that these problems "can be
remedied through effective professional peer review," id. §
11101(3). In furtherance of this goal, HCQIA grants limited
immunity, in suits brought by disciplined physicians, from
liability for money damages to those who participate in
; professional peer review activities. /d.§ 11111(a).
Prior to the passage of HCQIA, the specter of litigation
seriously impeded the development and vigorous enforcement
of hospital peer review procedures. Congress found that "(t]he
threat of private money damage liability under [state and]
Federal laws, including treble damage liability under Federal
antitrust law, unreasonably discourages physicians from
participating in effective professional peer review." Id. §
11101(4).' Accordingly, HCQIA provides that, if a "profes-
' See also H.R.Rep. No. 903, at 3, reprinted in 1986 U.S.C.C.A.N. at
6385 (noting that "[e]ven though defendants may often win these lawsuits,
that may not be sufficient to guarantee enthusiastic, or even minimally
_
A.10
BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
sional review action" (as defined in the statute) meets certain
due process and fairness requirements, then those participating
in such a review process shall not be liable under any state or
federal law for damages for the results. Jd § 11111(a)(1).
Thus, "[dJoctors and hospitals who have acted in accordance
with the reasonable belief, due process, and other requirements
of [HCQIA] are protected from damages sought by a
disciplined doctor." H.R.Rep. 903, at 3, reprinted in 1986
U.S.C.C.A.N. at 6385.
HCQIA is designed to facilitate the frank exchange of
- information among professionals conducting peer review
inquiries without the fear of reprisals in civil lawsuits.2_ The
adequate, peer review" because "[doctors who are sufficiently fearful of the
threat of litigation will simply not do meaningful peer review").
* In another set of provisions, HCQIA requires health care entities to
report certain specific disciplinary actions taken against a staff physician
(or the acceptance of a resignation or suspension in return for not
conducting investigations or disciplinary proceedings) to a national
clearinghouse established to collect and disseminate information on health
care providers. 42 U.S.C. §§ 11133-34. Then, prior to admitting a physi-
cian to its staff, a hospital must obtain that physician’s records from the
clearinghouse. /d. § 11135. These reporting requirements were designed
to "restrict the ability of incompetent physicians to move from State to
State without disclosure or discovery of the physician’s previous damaging
or incompetent performance." Jd. § 11101(2) (reciting congressional
findings). Congress recognized that physicians faced with disciplinary
action, no longer able to hide their previous discipline, would feel
compelled to challenge any action taken against them in the courts. See
H.R.Rep. No. 903, at 3, reprinted in 1986 U.S.C.C.A.N. at 6385.
Accordingly, the reporting requirements increased the need to protect peer
A.11
BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
statute attempts to balance the chilling effect of litigation on
peer review with concerns for protecting physicians improperly
subjected to disciplinary action; accordingly, Congress granted
immunity from monetary damages to participants in properly
conducted peer review proceedings while preserving causes of
action for injunctive or declaratory relief for aggrieved
physicians. Because the statutory scheme is somewhat
convoluted, we discuss the immunity provisions in detail.’
review participants from liability.
The Secretary of Health and Human Services may, following an
investigation, publish in the Federal Register the name of a health care
entity that has failed to comply with these reporting requirements; a
hospital so identified then loses the protection of HCQIA immunity
provisions for three years. 42 U.S.C. § 11111(b).
* It is important to note that we use the term "immunity" here in a
limited sense. See H.R.Rep. No. 903, at 3, printed in 1986 U.S.C.C.A.N.
at 6385. HCQIA establishes an immunity only from liability for money
damages, not a right to avoid standing trial. As the Tenth Circuit has
concluded, "[t]he plain meaning of [42 U.S.C. § 11111(a)(1)] is that
professional review bodies and covered individuals who satisfy the
requirements of § 11112(a) are immune from liability only. On its face,
the provision does not explicitly establish immunity from suit." Decker v.
IHC Hosps., Inc., 982 F.2d 433, 436 (10th Cir.1992) (footnote omitted)
(holding that motions to dismiss based on HCQIA immunity are not
immediately appealable), cert. denied, --- U.S. ---, 113 S.Ct. 3041, 125
L.Ed.2d 727 (1993); accord Manion v. Evans, 986 F.2d 1036, 1042 (6th
Cir.1993).
This reading of the statute comports with the legislative history
surrounding its adoption. According to the report of the House Committee
on Energy and Commerce:
Initially, the Committee considered establishing a very broad protection
Y
A.12
BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
The provision of HCQIA that limits the availability of
damages for professional review actions provides as follows:
If a professional review action (as defined in. . . this
title) of a professional review body meets ali the standards
specified in section 11112(a) of this title, ...
(A) the professional review body,
(B) any person acting as a member or staff to the body,
(C) any person under a contract or other formal agreement
with the body, and
(D) any person who participates with or assists the body
with respect to the action,
shall not be liable in damages under any law of the United
States or of any State (or Political subdivision thereof) with re-
spect to the action.
from suit for professional review actions. In response to concerns that
such protection might be abused and serve as a shield for anti-
competitive economic actions under the guise of quality controls,
however, the Committee restricted the broad protection. As redrafted,
the bill now provides protection only from damages in private actions,
and only for proper peer review, as defined in the bill.
H.R.Rep. No. 903, at 9, reprinted in 1986 U.S.C.C.A.N. at 6391.
A.13
BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
42 U.S.C. § 11111(a)(1).4 The standards that professional
review actions must satisfy to entitle the participants to such
protection are enumerated in section 11112(a) as follows:
For purposes of the protection set forth in section
11111(a) of this title, a professional review action must be
taken--
(1) in the reasonable belief that the action was in the
furtherance of quality health care,
(2) after a reasonable effort to obtain the facts of the
matter,
(3) after adequate notice and hearing procedures are
afforded to the physician involved or after such other
procedures as are fair to the physician under the circumstances,
and
(4) in the reasonable belief that the action was warranted
“Section 11111(a)(1) expressly excludes from its coverage suits
brought under 42 U.S.C. § 1983 or Title VII of the Civil Rights Act of
1964, but it clearly does apply to antitrust claims. See Patrick v. Burget,
486 US. 94, 105 n. 8, 108 S.Ct. 1658, 1665 n. 8, 100 L.Ed.2d 83 (1988).
The section states, however, that [nothing in this paragraph shall prevent
the United States or Attorney General of a State from bringing an action,
including an action under [section 4C of the Clayton Act, 15 U.S.C. §
15C], where such an action is otherwise authorized." 42 U.S.C. §
11111(a)(1). And HCQIA "does not restrict the rights of physicians who
are disciplined to bring private causes of action for injunctive or
declaratory relief." H.R.Rep. No. 903, at 9, reprinted in 1986
U.S.C.C.A.N. at 6391.
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BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
by the facts known after such reasonable effort to obtain facts
and after meeting the requirement of paragraph (3).
Id. § 11112(a). Importantly, HCQIA also creates a rebuttable
presumption of immunity: "A professional review action shall
be presumed to have met the preceding standards necessary for
the protection set out in section 11111(a) of this title unless the
presumption is rebutted by a preponderance of the evidence."
Id.
Section 11112(b) of HCQIA then enumerates the minimum,
or "safe harbor" procedures that will, in every case, satisfy the
adequate notice and hearing requirement of section
11112(a)(3). Jd § 11112(b). Organized in the form of a
detailed checklist, the provision defines what hospitals
conducting peer review disciplinary procedures must do to
obtain the Act’s protection for itself and the members of its
peer review bodies. We discuss this checklist in more detail
infra in part III. Congress was careful to explain, however,
that "[a] Professional review body’s failure to meet the
conditions described in this subsection shall not, in itself,
constitute failure to meet the standards of subsection (a)(3) of
this section." /d.
The legislative history of section 11112(a) indicates that the
statute’s reasonableness requirements were intended to create
an objective standard of performance, rather than a subjective
good faith standard. As the House Committee on Energy and
Commerce explained:
Initially, the Committee considered a "good faith"
standard for professional review actions. In response to
A.15
BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
concerns that "good faith" might be misinterpreted as
requiring only a test of the subjective state of mind of the
physicians conducting the professional review action, the
Committee changed to a more objective "reasonable
belief" standard. The Committee intends that this test will
be satisfied if the reviewers, with the information
available to them at the time of the professional review
action, would reasonably have concluded that their action
would restrict incompetent behavior or would protect
patients.
H.R.Rep. No. 903, at 10, printed in 1986 U.S.C.C.A.N. at
6392-93. See Austin v. McNamara, 979 F.2d 728, 734 (9th
Cir.1992) (holding that HCQIA reasonableness requirements
create an objective standard, rather than a good faith
requirement).
A review of the facts of this case reveal that HCQIA’s
limitations on monetary liability dictate the outcome of this
appeal.
Il.
The appellant, Holmes Regional Medical Center ("Holmes"
or "the Hospital"), is a nonprofit corporation operating a
private hospital in Melbourne, Florida. The appellee, Dr.
Floyd T. Bryan, is a board-certified physician who specializes
in general and vascular surgery.” Bryan became a member of
‘The appellees are Bryan and his professional organization, Floyd T.
Bryan, M.D., P.A. We refer to them collectively as "Bryan" for conve-
nience.
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BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
the Holmes medical staff in 1976; he is generally
acknowledged to be an excellent surgeon, often undertaking
long, detailed vascular procedures that other physicians in the
field avoid. Bryan also has a reputation for being a volcanic-
tempered perfectionist, a difficult man with whom to work,
and a person who regularly viewed it as his obligation to
criticize staff members at Holmes for perceived incompetence
or inefficiency. Hospital employees, however, often viewed
Bryan’s "constructive criticism" as verbal --or even physical--
abuse. Because the Holmes board of directors found Bryan’s
behavior inappropriate and unprofessional, it terminated his
medical staff privileges in November 1990. The means by
which Holmes accomplished this termination is the subject of
the dispute in this case.
A.
The organizational structure at Holmes, as is the case at
most hospitals, is bifurcated, reflecting the distinct roles of the
Hospital Administration and of the medical staff. Holmes is
governed by a board of directors, comprised mostly of non-
physicians, that retains the ultimate responsibility for the oper-
ation of the facility. The board employs a staff, led by a
president and chief executive officer ("CEO"), to manage the
hospital on a day-to-day basis. The medical staff organization,
which consists of all doctors with privileges to practice at
Holmes, represents the physicians in the Hospital’s
government. The medical staff is led by an elected chief of
staff who presides over the medical executive committee,
which comprises the chairpersons of the various clinical
departments as well as several officers elected by the staff at
large.
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BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
The Holmes board of directors promulgates bylaws for the
medical staff, by which all physicians receiving staff privileges
at the Hospital agree to be bound. The bylaws provide a
detailed series of procedures for handling physician
disciplinary actions. Under those bylaws, the medical staff,
through its executive committee, may recommend that the
board of directors suspend or revoke the privileges of a
physician". Although the board retains the ultimate authority
over staff privileges, the recommendations of the medical staff
are given considerable weight. This system, which is known as
peer review, is designed to raise the quality of medical care by
encouraging physicians to police themselves. Florida law
mandates that hospitals provide for peer review of their staff
doctors.°
Under the Holmes bylaws, certain hospital officials may
request an executive committee investigation’ into a
physician’s conduct if the medical staff member fails to
comply with the ethics of the medical profession or with the
Hospital’s bylaws, or if "the Staff appointee is unable to work
harmoniously with others to the extent that it affects the
orderly operation of the hospital or Medical Staff
* See Fla.Stat.Ann. § 395.0193(2) (West 1993) ("Each licensed [health
care} facility, as a condition of licensure, shall provide for peer review of
physicians who deliver health care services at the facility.").
” Investigations may be requested, according to the bylaws, by various
officers of the medical staff, including the chairpersons of various com-
mittees and clinical departments. Such requests must be made in writing
to the executive committee and must refer to the specific conduct that
constitutes the basis for the request.
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BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
organization." Grounds for investigation also include questions
regarding a physician’s clinical competence or his care and
treatment of patients.
Once an investigation is initiated, the executive committee
is charged with making a recommendation to the board of
directors concerning the level of discipline that should be
imposed.’ The executive committee’s recommendation may
range from a written warning to revocation of clinical
privileges, but a recommendation involving the reduction,
suspension, or revocation of clinical privileges entitles the
physician to the extensive procedural hearing rights outlined in
the bylaws. The executive committee’s recommendation is
forwarded to the CEO of the hospital, who notifies the
physician under scrutiny. The physician has twenty days from
receipt of the notice to make a written request for a hearing.
If the physician waives his or her right to a hearing, the CEO
forwards the recommendation (along with the supporting
documentation) to the board of directors for a final disposition
* All or part of the physician’s privileges may be suspended
temporarily pending the outcome of the inquiry. The relevant provision of
the bylaws provides:
At any time during the investigation, the Executive Committee or the
Medical Staff President or his designee may suspend all or any part
of the clinical privileges of the individual being investigated. This
suspension shall be deemed to be administrative in nature, for the
protection of hospital patients. It shall be in effect during the
investigation only, shall not indicate the truth of the charges, and
shall remain in force, without appeal, during the course of the
investigation.
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BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
of the matter.’
When a physician requests a formal hearing, the executive
committee appoints a hearing panel consisting of seven
members of the medical staff who have not taken active part
in consideration of the matter contested; mere knowledge of
the matter does not preclude a staff member from serving on
a hearing panel. According to the bylaws, "[t]he purpose of
the hearing shall be to recommend a course of action to those
acting for the hospital.... [T]he duties of the Hearing Panel
shall be so defined and so carried out."
The medical staff bylaws contain detailed procedures
governing the hearing process, including provisions for written
notice of the time and place for the hearing, prompt
scheduling, and lists of witnesses. The physician requesting
the hearing is entitled to representation, and has full rights of
cross-examination and confrontation of witnesses. The
executive committee designates someone, who may be an
attorney, to present the disciplinary recommendation that led
* The procedure is slightly different when the executive committee
settles on a less severe form of discipline. If the action of the executive
committee does not involve the reduction, suspension, or revocation of staff
privileges, the bylaws provide that "it shall take effect immediately without
action of, and without the right of appeal to the Board." A report of the
action is sent to the board, which may modify the executive committee’s
decision on its own initiative. Should the board decide to reject a
favorable recommendation by the executive committee and impose a more
severe form of discipline that involves the suspension or revocation of
clinical privileges, however, the physician would then be entitled to a
hearing (according to the same procedures) before the board enters a final
decision.
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BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
to the hearing and to examine witnesses. In addition, the CEO
appoints a hearing officer, who must be an attorney, to preside
over the hearing and to rule on the admissibility of evidence;
the hearing officer must not act as a prosecuting officer or as
an advocate for the hospital. The bylaws recognize that all
members of the hearing panel, as practicing physicians, cannot
be present for all panel sessions and expressly provide that
their absence will not disqualify them or invalidate the hearing.
The decision of the hearing panel is to be based on the
evidence produced at the hearing, whether in the form of oral
testimony of witnesses or documentary evidence. The bylaws
specifically provide that the evidence may include "any
material contained in the hospital’s files regarding the
[complained-against physician] who requested the hearing so
long as this material has been admitted into evidence at the
hearing and the [physician] who requested the hearing had the
opportunity to comment on and, by other evidence, refute it."
The "burden of proof" is established as follows: "[T]he
Hearing Panel shall recommend against the [physician] who
requested the hearing unless it finds that said [physician] has
proved that the recommendation which prompted the hearing
was unreasonable, not sustained by the evidence, or otherwise
unfounded."
After reaching a decision, the hearing panel is to "render a
recommendation, accompanied by a report, which shall contain
a concise statement of the reasons justifying the
recommendation made....". The report is then forwarded to the
executive committee for whatever modification, if any, it may
wish to make in its original recommendation. The executive
committee’s decision on modification is purely discretionary.
A.21
BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
Within fifteen days after the affected physician is notified of
final adverse action by the executive committee, the doctor
may make a written request for appellate review by the board
of directors. If appellate review is not requested within the
fifteen-day period, the affected individual is deemed to have
accepted the recommendation involved "and it shall thereupon
become final and immediately effective." The terms of the
bylaws limit the grounds upon which an adverse disciplinary
recommendation may be appealed to the following:
[1] there was substantial failure on the part of the
Executive Committee or Hearing Panel to comply with
the hospital or Medical Staff Bylaws in the conduct of
hearings and recommendations based upon hearings so
as to deny due process or a fair hearing, or
[2] the recommendation was made arbitrarily, capriciously,
or with prejudice; or
[3] the recommendation of the Executive Committee or
Hearing Panel was not supported by the evidence.
Under time constraints imposed by the bylaws, the chairman
of the board appoints a board review panel (consisting of three
‘Or more persons, including board members or "reputable
persons outside the hospital") to consider the record upon
which the disciplinary recommendation was made. The review
panel may accept additional evidence, subject to the same
procedural guarantees that apply to hearing panels, and both
sides have an opportunity to present arguments. The review
A.22
BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
panel then recommends action to the full board."
The board of directors may affirm, modify, or reverse the
recommendations of either the appellate review panel or the
executive committee, or, in its discretion, refer the matter for
further review and, recommendation.'' When made, the
board’s ultimate decision is final, immediately effective, and
is not subject to further review under the bylaws.
B.
Bryan’s disciplinary problems began shortly after he arrived
at Holmes in 1976, and they continued throughout his tenure
at the Hospital. Indeed, prior to his termination, Bryan was
the subject of more than fifty written incident reports involving
unprofessional or disruptive behavior, usually complaints
regarding Bryan’s abusive treatment of nurses, technicians, and
even fellow physicians.’ By December 1987, nurses in the
'® If the board’s review panel recommends action to the board that is
contrary to the recommendation of the medical staff, and if a physician’s
privileges are at Issue, then the matter is first reviewed by a joint
conference committee, comprised of members of the board and the medical
staff, before the board makes a final decision.
'' The medical staff bylaw that contains this provision does not
indicate to whom the board may "refer the matter for further review."
' Some insight into the origins of this behavior came from Bryan
himself during his testimony at trial. Shortly after completing his
residency, Bryan obtained staff privileges at a Veterans Administration
hospital in Miami. There, he explained, he soon learned that the hospital
could not fire incompetent nurses and other technicians easily; the most
A.23
BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
intensive care unit at Holmes were refusing to care for Bryan’s
patients on anything but a rotating basis for fear of becoming
the object of his volcanic temper. For their part, surgical
nurses complained that Bryan’s verbal abuse compounded an
already stressful environment, precluding them from operating
at peak performance.
At trial in this case, numerous employees who had either
witnessed or suffered his outbursts described Bryan’s
temperament; he was characterized as being "brutal" and
sharp" with subordinates, as engendering fear in the nursing
staff, and as promoting a tense working atmosphere. Bryan
admitted both during the Holmes disciplinary process and at
trial in federal court that he had a problem with his temper and
that his behavior had, at times, been "disruptive" and "un-
professional." He also conceded that the incident reports
describing his behavior were not fabrications.
At first, the Hospital and the medical staff attempted to deal
with Bryan’s behavior informally. Bryan’s conduct was the
subject of periodic meetings and counseling by the executive
committee, the chief of the medical staff, and even the CEO of
the hospital. The Hospital repeatedly warned Bryan that his
confrontations with staff members could not be tolerated and
insisted that he correct his disruptive behavior. In 1985, Bryan
agreed to take a voluntary leave of absence and to seek
counseling, first with his priest and then with a psychiatrist
(who prescribed a number of medications) to control his
effective way to avoid working with nurses he viewed as incompetent or
inefficient, he discovered, was to insult them until they refused to
participate in operations involving his patients.
A.24
BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
temper.
The incidents continued unabated, however, over the next
three years, and Hospital officials gradually began to take a
more active approach in dealing with the problem. In August
1987, a group of three Holmes officials--the Hospital’s CEO,
the chief of the medical staff, and the chairman of the de-
partment of surgery--advised Bryan that he would be brought
before the executive committee for consideration of formal
disciplinary action if further incidents occurred. Following
additional incident reports detailing a continued behavioral
pattern, the executive committee appointed an ad hoc
committee "to investigate Dr. Bryan’s long term pattern of
behavior and look into rehabilitative possibilities and make a
recommendation to the Executive Committee." In March, the
ad hoc committee recommended that any future problems be
the subject of graduated suspensions, beginning with a one-
week suspension for the next significant incident. The execu-
tive committee agreed to this proposal and informed Bryan in
writing of its decision that any further incidents would result
in disciplinary action of increasing severity. According to the
minutes from the executive committee’s March 14, 1988,
meeting, "[tlhe Committee felt that such specific guidelines
would be an appropriate mechanism to help Dr. Bryan improve
his behavior." Bryan did not contest this action.
In April 1988, Just one month after the executive
committee’s warning concerning graduated discipline, Bryan
had an angry exchange with two anesthesiologists when an
operation began three minutes behind schedule. When the
anesthesiologists attempted to explain why they were taking a
few minutes to reexamine the patient’s medical records before
A.25
BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
administering the anesthesia to the patient on the operating
table, Bryan told them that he "didn’t give a damn about
incompetent people’s excuses." According to _ the
anesthesiologists, he then launched into a tirade of insults in
loud and angry tones in front of the still-conscious patient.
The executive committee recommended a one-week suspen-
sion as a result of the incident with the anesthesiologists;
Bryan again accepted the punishment without objection. Yet
Bryan’s problems with his colleagues continued. In October
1988, for example, Bryan falsely reported to a nurse supervisor
that one of her patients had just hanged himself in his room;
in fact, the patient was fine. At trial, Bryan explained that he
had intended the episode as a "joke" to teach the nurse
"responsibility." After additional incidents during the fail of
1988, the executive committee met to consider disciplinary ac-
tion. Bryan was invited to this meeting, but he did not appear
because, due to a miscommunication, he was waiting in his
office to be called. The executive committee reviewed the
recent incident reports and, concluding that they included at
least two new significant episodes, recommended a four-week
suspension. °
At this point, Bryan for the first time invoked his procedural
rights under the bylaws, requesting that a peer review hearing
panel evaluate the executive committee’s recommendation.
Bryan was represented by counsel at the proceedings, over
which Dr. Dale Ryon presided. The Ryon panel concluded
'- Under the bylaws, Bryan’s presence was not required at this stage
of the proceedings.
A.26
BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
that Bryan had in fact done the things alleged and that Bryan’s
actions were inappropriate. Nevertheless, it recommended that
no suspension be imposed. In its report, the panel expressed
concern that the subcommittee monitoring Bryan’s behavior
had not discussed the incident reports with Bryan before
making a recommendation to the executive committee, and
that the executive committee had recommended a four-week
suspension without hearing from Bryan (as a result of the
misunderstanding about the meeting). Further, the Ryon panel
suggested that the Hospital’s incident report system as a whole
was flawed because a report might be filed without the
affected individual having a contemporaneous opportunity to
respond."*
After receiving the Ryon panel’s report, the executive
committee modified its original disciplinary recommendation,
reducing the suggested suspension from four weeks to two.
Bryan appealed the executive committee’s recommendation to
the board of directors, which decided that no suspension would
be imposed. On October 19, 1989, however, the board advised
Bryan by letter that his abusive behavior could no longer be
tolerated and that any further incidents of unprofessional
behavior would result in the permanent revocation of his staff
privileges. Bryan acknowledged the board’s conditions by
signing this "ultimatum" letter on December 19, 1989. Above
his signature, however, Bryan referred the board to his letter
of December 13, in which he disputed that his behavior was
disruptive and stated that, by signing the board’s letter, he was
'* In response to this criticism, the incident report system at Holmes
was changed to ensure that copies of all incident reports would be provided
to the subject soon after they were filed.
A.27
BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
not waiving his "rights to due process of law or other civil
tights as a medical staff member and American citizen."
Despite the board’s warning, Bryan was involved in four
additional incidents in the first five months of 1990; these four
incidents led directly to the termination of Bryan’s medical
staff privileges. First, surgical technologist Tina Stark filed an
incident report stating that, on March 7, Bryan slapped her
hands--apparently as a reprimand for a perceived mistake in
handling a catheter--while she was assisting him in an
operation. On April 9 and 16, 1990, the executive committee
held meetings concerning the Stark incident and interviewed
the various nurses and physicians who witnessed the events.
Given Bryan’s past pattern of conduct, the executive
committee recommended that Bryan’s privileges be suspended
for two weeks. Bryan requested a peer review hearing.
Before a hearing panel could be appointed, however, Bryan
was involved in a second physical incident. On May 16, 1990,
while nurse Michael Greene assisted Bryan on an operation,
Bryan struck Greene’s hands with a surgical instrument;
Greene claimed that his hand hurt for several minutes
afterwards.
During the same period, Bryan twice ordered the wrong
patient prepared for surgery, first in March of 1990 and then
in May. On both occasions, the mistake was caught by
another physician after the patient had been transferred to the
surgical intensive care unit in advance of the operation.
On May 29, 1990, the executive committee convened to
A.28
BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
interview the witnesses to the four recent incidents.'* Bryan
presented his version of events to the committee: He at-
tributed what were perceived as slaps to the hands of the
nurses as a form of "nonverbal communication" (the use of
hand motions by a physician to give directions during surgery)
to correct the nurses’ mistakes; similarly, although he admitted
the misdirections of the patients for surgery, he minimized
these mistakes because they were detected in time and no harm
had come to the individuals involved. After considering these
latest incidents in light of Bryan’s history of disruptive
behavior and the hospital’s varied attempts to correct such
behavior--as well as the board’s explicit warning a few months
before that further unprofessional conduct would result in
Bryan’s dismissal--the executive committee recommended that
Bryan’s staff privileges be permanently revoked.
Once again, Bryan requested that a peer review hearing
panel be appointed. Chaired by Dr. Joseph Chanda, the panel
consisted of seven physicians, none of whom were vascular
surgeons.'° The Chanda panel held four sessions of hearings;
'S By letter dated May 18, 1990, Dr. Barry Mills, the chief of the
medical staff, suspended Bryan’s clinical privileges pending an
investigation into these matters. This suspension was considered
administrative in nature; under the bylaws, Bryan was allowed *o continue
to care for patients already admitted to the Hospital, but he couid not admit
any additional patients.
‘* The hearing panel members were appointed by Dr. Mills with the
approval of the executive committee. Bryan challenged the initial compo-
sition of the panel, alleging bias on the part of Dr. William Broussard, who
advised Bryan to seek counseling for his interpersonal problems in 1982.
Bryan also contended that the panel should be composed solely of
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A.29
BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
Bryan was represented by counsel at the proceedings, and he
had both the opportunity to cross-examine the witnesses
offered by the medical staff and to present witnesses and
documentary evidence on his own behalf. A court reporter
recorded the testimony at all of the hearing sessions. Two
panel members were absent from at least part of the hearings,
but Chanda testified at @ that the panel as a whole reviewed
the testimony orally at the end of each session and during
deliberations and that summarized what had transpired for the
absent members.
The Chanda panel heard the testimony of a number of
witnesses, including those directly involved in the four most
recent incidents. Bryan himself testified as well, explaining
that all of his actions at the Hospital had been motivated by his
concern for the care of his patients. The panel also considered
the earlier incident reports in Bryan’s file that had formed the
basis for the board’s warning to that any additional disruptive
behavior would result in the termination of Bryan’s
privileges.'”
surgeons. In response to Bryan’s objections, Mills selected a new panel
member to replace Broussard but did not remove the non-surgeons who had
previously been named. As provided by the bylaws, none of the panel
members were vascular surgeons (Bryan’s direct economic competitors).
Bryan did not object to the reconstituted hearing panel.
'’- During the Chanda panel proceedings, the medical staff attempted
to introduce all of the prior incident reports involving Bryan’s behavior to
demonstrate the pattern of misconduct that had led to the board’s warning
regarding termination of privileges. The hearing officer refused to admit
those reports into evidence. On the last day of the proceedings, however,
Bryan called Dr. Ryon to testify regarding the earlier incident reports that
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BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
Much of Bryan’s defense was focused on a disparate
treatment argument. Bryan contended that he had been written
up for minor incidents that would have been ignored had they
involved any other doctor on the Holmes staff. Bryan also
argued that his temper was not disruptive, and that many other
physicians at the Hospital had similar or worse temper
problems. He further suggested that the disciplinary action
was motivated principally by personal animosity on the part of
hospital administrators and executive committee members.
After considering the evidence presented, the Chanda panel
unanimously found that the most recent incidents, which
prompted the executive committee’s investigation and disci-
plinary recommendation, "were amply supported by the
record" and violated the admonitions in the board’s October
19, 1989, "warning" letter. The panel also concluded that
Bryan had demonstrated a pattern of disruptive behavior
extending over many years. Because "the hospital behavior of
[Bryan was] below acceptable standards and adversely
impact[ed] upon patient care and adversely affect{[ed] Hospital
Staff's ability to deliver quality patient care," the panel rec-
his panel had considered; Bryan attempted to elicit testimony that there was
no pattern of inappropriate conduct by Bryan. Because Bryan had brought
the earlier incident reports into issue, the Chanda panel asked the hearing
officer sua sponte to review the reports, which he allowed at the last
session of the hearings. Although Bryan complained that the reports
should not be reviewed at that late stage of the proceedings, he did not
formally object, assert a violation of the Hospital’s bylaws, or ask to
reopen the hearing to present evidence in rebuttal. Several Holmes officials
who testified at trial agreed that Bryan could have requested a
postponement to prepare a response if he was concerned about these last-
minute developments.
A.31
BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
ommended that Bryan’s clinical privileges be suspended for
two years.
After considering the Chanda panel’s report, the executive
committee stood by its recommendation that Bryan’s staff
privileges be revoked. Bryan appealed the executive
committee’s recommendation to the board of the directors;
pursuant to the bylaws, the board appointed a board review
panel, which also recommended revocation of Bryan’s clinical
privileges. The full board then considered the three
recommendations--the report of the executive committee
recommending termination of Bryan’s clinical privileges, the
report of the Chanda panel recommending that Bryan be
suspended for two years, and the report of the board’s own
review panel recommending termination.'* In November
1990, the board unanimously voted to terminate Bryan’s
clinical privileges at Holmes. Members of the executive
committee and the board who testified at trial agreed that the
'* Bryan has repeatedly emphasized that the board members did not
themselves read the complete transcript of the Chanda panel proceedings
before reaching the decision to terminate Bryan’s privileges. Bryan,
however, had the opportunity to obtain a copy of the transcript of the
hearings so that he could refer to specific portions in presenting his appeal
to the board; he did not do so. Nor does the record indicate that he claimed
at the time that the bylaws required the board to obtain the transcript before
taking action concerning his staff privileges. Moreover, the text of the
relevant medical staff bylaw provision states only that "(tlhe Hearing Panel
shall maintain a record of the hearing by a reporter present to make a
record of the hearing or a recording of the proceedings. The cost of such
a reporter shall be borne by the hospital." A transcript of the first day of
the Chanda panel hearings was prepared at Bryan’s request and was
available for the board’s consideration.
A.32
BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
disciplinary action was taken after a reasonable effort to obtain
the facts and in the reasonable belief that the severe sanction
was imposed on Bryan in furtherance of quality patient care at
Holmes.
Throughout the disciplinary process, neither Bryan nor the
expert witnesses who testified on his behalf contended that the
various incident reports that formed the basis for the
disciplinary action were fraudulent fabrications. Indeed, Bryan
himself admitted that, in each instance, some sort of interaction
occurred between himself and the author of the incident report.
Bryan merely disagreed both with the Hospital’s judgment
concerning the propriety of his conduct and the severity of the
sanction imposed.
‘.
On December 5, 1990, in the United States District Court
for the Middle District of Florida, Bryan filed a complaint on
behalf of himself and his professional association against the
Hospital, the individual members of its board of directors,
members of the medical staff executive committee, and two
nurses. The complaint included federal and state antitrust
claims as well as state law claims for defamation, negligent
supervision of the peer review process (against only the
individual members of the board of directors), and breach of
contract for failing to follow the medical staff bylaws during
the disciplinary process (against the Hospital).'!? The
'* The complaint also included the following various ancillary claims:
(1) constitutional and civil rights claims under 42 U.S.C. § 1983 (1988);
(2) federal contractual claims arising out of the Hospital’s participation in
Sek sale) WAR eel a Re
Taide OREO eI tS ERB a ne BRS lo a Naa La SIE ns Ne cs ew
A.33
BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
complaint demanded damages and, only with respect to the
count of negligent supervision, injunctive relief. The central
allegation in the complaint was that the defendants,
"individually and in concert, acted in bad faith and with
intentional fraud, resulting in the destruction of Dr. Bryan’s
medical practice."
Beginning with their answer denying liability on all counts,
the Hospital and the other defendants consistently claimed
immunity from monetary liability for their actions in
terminating Bryan’s clinical privileges because they were
functioning in this matter, individually and collectively, as a
professional review body in a peer review process. Later, the
defendants filed motions for summary judgment, contending,
inter alia that they were immune from Bryan’s suit for
damages under HCQIA, 42 U.S.C. § 11111(a), and under
Florida law, Fla.Stat.Ann. § 395.0193(5).”°
the Medicare program; and (3) claims of "interference with prospective
economic advantage" and intentional infliction of emotional distress. These
causes of action did not figure prominently in the litigation of this case,
and the court disposed of these claims either on summary judgment or by
granting a directed verdict in favor of the defendants. Because these claims
are not before us on appeal, we do not discuss them further in this opinion.
** For the text of the relevant HCQIA provisions, see supra part I. The
Florida statute requiring that hospitals institute peer review procedures also
provides legal protection to participants. The Florida law provides:
There shal! be no monetary liability on the part of, and no cause of
action for damages against, any licensed facility, its governing board or
governing board members, peer review panel, medical staff, or
_ disciplinary body, or its agents, investigators, witnesses, employees, or
any other person for any action taken without intentional fraud in
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BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
In disposing of the defendants’ motions, the district court
made the following rulings. First, material issues of fact
remained concerning whether the applicable standards for peer
review actions had been met; therefore, a jury would have to
decide the question of immunity. Second, Bryan lacked
standing to pursue antitrust claims for damages under either
Florida antitrust law or section 4 of the Clayton Act, 15 U.S.C.
§ 15(a) (1988),”' but Bryan could assert a claim for injunctive
relief under sections 1 and 2 of the Sherman Act, Jd. §§ 1, 2
(Supp. IV 1993). The factual issues underpinning Bryan’s
eligibility for injunctive relief would be submitted to the jury,
acting in an advisory role. Third, the record did not support
Bryan’s negligent supervision claim against the individual
members of the board of directors. In sum, the following
claims remained for trial: the state law damages claims for
breach of contract and defamation, as well as the section | and
2 Sherman Act claims as to which the jury’s verdict would be
advisory.
carrying out the provisions of this section.
Fla.Stat.Ann. § 395.0193(5).
*! This circuit applies a two-pronged test of antitrust standing: The
court must first determine that the plaintiff has suffered "‘antitrust injury
and then decide whether the plaintiff is "an efficient enforcer of the
antitrust laws." Todorov v. DCH Healthcare Auth., 921 F.2d 1438, 1449
(11th Cir.1991). The district court held that Bryan had failed to
demonstrate that he was an efficient antitrust enforcer.
o”
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BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
This case was tried before a jury in June 1992.” At the
close of Bryan’s case, the district court directed a verdict in
favor of all of the individual defendants on the various counts
against them because the evidence was insufficient to support
liability. The court concluded, however, that the evidence
- supported Bryan’s claims for breach of contract against the
Hospital, and denied the Hospital’s motion for a directed
verdict because material issues of fact remained concerning the
federal and state peer review immunity statutes. The court
also found that the evidence supported Bryan’s antitrust claims
against the Hospital and accordingly submitted those claims to
the jury.
While the court’s oral jury instructions recited some of the
language from the immunity statutes, the court did not explain
to the jury that the immunity provisions created a threshold
question concerning whether Bryan was entitled to damages at
2. At trial, as before the Chanda panel, Bryan presented testimony from
various expert witnesses explaining that Bryan’s actions were proper and
did not adversely affect patient care; nothing in the record, they testified,
would justify the revocation of Bryan’s clinical privileges. This testimony
was discounted by the Chanda panel. The experts themselves
acknowledged at trial that a pattern of disruptive behavior could become
so severe that disciplinary action would be required; on cross-examination,
the experts also admitted that they had not examined all of the information
considered by the Chanda panel. The Hospital also countered with expert
testimony explaining why termination of Bryan’s privileges was consistent
with sound hospital administration.
Bryan also presented the testimony of witnesses who found fault with
the Hospital’s peer review procedures, particularly that a transcript of the
Chanda panel hearings was not prepared for the board’s use and that the
Chanda hearing officer had become too inquisitorial in his questioning.
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BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
all. Moreover, despite requests by counsel for Holmes, the
special verdict form did not include any reference to the
federal and state peer review immunity statutes.’ Regarding
the breach of contract claim, the special verdict form simply
asked the jury to answer this question: "Did Holmes Regional
Medical Center permanently terminate Dr. Bryan’s medical
staff privileges in violation of its bylaws?" If the jury answered
"Yes," the verdict form then directed it to quantify the
damages sustained by Bryan as a proximate result of the
Hospital’s conduct. Similarly, regarding the antitrust claim,
the verdict form only asked the jury "[h]as Holmes violated
state and federal antitrust laws?"
The jury returned affirmative answers to the verdict form
interrogatories regarding whether the Hospital had terminated
Bryan in violation of the bylaws and whether this breach
proximately caused damages to Bryan; and awarded Bryan
$4,181,242 in damages for these violations. The jury also
found that the Hospital had violated state and federal antitrust
laws, thereby causing harm to Bryan; but the district court
denied Bryan’s post-trial request for injunctive relief under the
antitrust laws, concluding that Bryan’s remedy at law was
* The following colloquy occurred during the brief charge conference
after the court informed counsel of its intended instructions:
[COUNSEL FOR HOLMES]: [T]he special verdict as read does not
include any of the immunity issues. Based on your decision on the
directed verdict you’ve left the decision to the jury and we would
respectfully request that the jury be instructed on the immunities.
THE COURT: I think that would be confusing to the jury, that’s why
I left them out. Of course, you can use that in your argument.
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BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
adequate.
The Hospital appeals from the district court’s judgment
awarding Bryan damages for the termination of his medical
staff privileges. Holmes first contends that the district court
erred in failing to grant its motion for judgment on the state
law damages claim based on immunity from liability under
both state and federal laws governing the peer review process.
In the alternative, the Hospital argues that a new trial is
required because the trial court gave erroneous jury
instructions and used an improper special verdict form. Bryan
cross-appeals from the portion of the district courts summary
judgment order denying the plaintiffs standing to seek damages
under federal antitrust law.
ITI.
A.
[1-3] HCQIA immunity is a question of law for the court to
decide and may be resolved whenever the record in a
particular case becomes sufficiently developed.“* Congress
*4- As the House Committee explained:
The provisions would allow a court to make a determination that the
defendant has or has not met the standards specified in section
[11112(a)]. The Committee intends that the court could so rule even
though other issues in the case remain to be resolved. For example, a
court might determine at an early stage of litigation that the defendant
has met the [section 11112(a)] standards, even though the plaintiff might
be able to demonstrate that the professional review action was otherwise
improper. At that point, it would be in order for the court to rule on
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BRYAN +, JAMES E. HOLMES
REGIONAL MEDICAL CENTER
clearly intended HCQIA to permit defendants in suits arising
out of peer review disciplinary decisions to file motions to re-
solve the issues concerning immunity from monetary liability
as early as possible in the litigation process.7*> As the House
Committee explained, "these provisions allow defendants to
file motions to resolve the issue of immunity in as expeditious
a manner as possible." H.R.Rep. No. 903, at 12, reprinted in
1986 U.S.C.C.A.N. at 6394. Several courts have resolved the
issue of HCQIA immunity from damages liability on summary
judgment. See, e.g., Harris v. Bellin Memorial Hosp., 13 F.3d
1082, 1083 (7th Cir.1994); Austin, 979 F.2d at 734-35; Islami
v. Covenant Medical Center, Inc., 822 F.Supp. 1361, 1376-77
(N.D.lowa 1992). Of course, although immunity may be
determined at the summary judgment stage, resolution of that
issue may be deferred until or after trial if the standards of
Rule 56 cannot be satisfied. The substantive standards under
immunity. In such a case, the court could still proceed to determine
whether injunctive, declaratory, or other relief would be in order.
H.R.Rep. No. 903, at 12, reprinted in 1996 U.S.C.C.A.N. at 6394; see also
Austin, 979 F.2d at 734 & n. 5.
** The American Medical Association, appearing as amicus curiae in
the case, urged this position on the court:
Under the HCQIA, the vast majority of lawsuits challenging peer review
proceedings should be dismissed at the summary judgment stage. Suits
against peer reviewers should be allowed to go forward only when the
plaintiff has rebutted the presumption that the peer review proceeding
was reasonable and fair. Any lesser standard would deter physicians
from serving as peer reviewers and would therefore undermine the
purpose of the HCQIA.
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BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
HCQIA, remain the same regardless of the point at which the
immunity determination occurs.
[4, 5] In civil rights cases brought under 42 U.S.C. § 1983
(1988), we have held that qualified immunity should not
become a part of the jury instruction once the affirmative
defense has been denied on a motion for summary judgment;
the defense of qualified immunity should be decided by the
court and should not be submitted for decision by the jury.”
We conclude that the same procedure should be followed when
considering a defendant’s immunity from damages liability
under HCQIA. A district court should consider the issue of
HCQIA immunity from damages at the summary judgment
stage. If it determines that the defendant is not entitled to such
** The qualified immunity analysis in suits against government officials
under 42 U.S.C. § 1983 provides a useful comparison. Although qualified
immunity for government officials is a broader protection than that
provided to peer review participants under HCQIA, the proper treatment of
the two protections is substantially similar.
In qualified immunity cases, the favored approach is to have the
immunity determination made by the court, prior to trial, whenever possi-
ble. See Mitchell v. Forsyth, 472 U.S. 511, 526, 103 S.Ct. 2806, 2815, 86
L.Ed.2d 411 (1985) (recognizing, of course, that qualified immunity is "an
immunity from suit rather than a mere defense to liability [that] is
effectively lost if a case is erroneously permitted to go to trial"). When the
issue cannot be resolved on summary judgment, we have held that "a jury
should seldom, if ever, be instructed on qualified immunity; the availability
of a qualified immunity defense is a question of law for the court to deter-
mine." Ansley v. Heinrich, 925 F.2d 1339, 1341 (11th Cir.1991).
Accordingly, "[a]lthough the district court preferably makes this determina-
tion before trial, qualified immunity is a legal determination that must be
made by the court and may be made either before trial, during trial, or after
trial." Stone v. Peacock, 968 F.2d 1163, 1165 (11th Cir.1992).
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BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
protection, then the merits of the case should be submitted to
the jury without reference to the immunity issue. If there are
disputed subsidiary issues of fact concerning HCQIA
immunity, such as whether the disciplined physician was given
adequate notice of the charges and the appropriate opportunity
to be heard, the court may ask the jury to resolve the
subsidiary factual questions by responding to special interroga-
tories. Cf Stone, 968 P.2d at 1166 (similar framework for
section 1983 qualified immunity cases); see also Islami 822
F.Supp. at 1378 (following Stone framework in HCQIA case).
Under no circumstances should the ultimate question of
whether the defendant is immune from monetary liability under
HCQIA be submitted to the jury.
In this case, we review the district court’s denial of the
Hospital’s motion for judgment as a matter of law under Rule
50(b) of the Federal Rules of Civil Procedure.*? Like the
district court in ruling on the motion for judgment, we view all
of the evidence in the light most to the non-moving party. It
is well established that "[j]udgment as a matter of law after the
verdict may be granted only when, without weighing the
credibility of the evidence, there can be but one reasonable
conclusion as to the proper judgment." 5A Moore’s Federal
Practice § 50.07[2] (1994). Accordingly, "we must inde-
pendently determine whether the facts and inferences point so
”. The Hospital had moved for judgment as a matter of law (for a
directed verdict) under Rule 50(a) at the close of Bryan’s case and again
at the close of ail the evidence. The court denied both motions, rejecting
the Hospital’s assertion of immunity from monetary liability under the
federal and state statutes. The issue, therefore, was properly preserved for
a post-trial motion for judgment.
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BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
overwhelmingly in favor of the movant . . . that reasonable
people could not arrive at a contrary verdict." Roboserve, Ltd.
v. Tom’s Foods, Inc., 940 F.2d 1441, 1448 (11th Cir.1991).
Moreover, "[t]he moving party is entitled to a [judgment as a
matter of law] if the nonmoving party failed to make a
showing on an essential element of his case with respect to
which he had the burden of proof." Smith v. United States, 894
F.2d 1549, 1552 (11th Cir.1990) (citing Cetotex Corp. v.
Catrett, 477 U.S. 317, 322-28, 106 S.Ct. 2548, 2552, 91
L.Ed.2d 265 (1986)).
[6] As the Ninth Circuit has explained, the rebuttable
presumption of HCQIA section 11112(a) creates an unusual
summary judgment standard that can best be expressed as
follows: "Might a reasonable jury, viewing the facts in the
best light for [the plaintiff], conclude that he has shown, by a
preponderance of the evidence, that the defendants’ actions are
outside the scope of § 11112(a)?"** Austin, 979 F.2d at 734.
If not, the court should grant the defendant’s motion. In a
sense, the presumption language in HCQIA means that the
plaintiff bears the burden of proving that the peer review
process was not reasonable. Of course, motions for summary
judgment under Rule 56 bear a close relationship to motions
for judgment as a matter of law under Rule 50. Courts
frequently apply the same standards when ruling on the two
motions, although a motion for judgment as a matter of law
may be granted although a prior motion for summary judgment
7% As the Supreme Court has explained, "in ruling on a motion for
summary judgment, the judge must view the evidence presented through
the prism of the substantive evidence burden." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986).
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BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
raising the same issues had been denied. Therefore, we adopt
the Ninth Circuit’s statement of the applicable standard in this
case as well: "[O]ur inquiry focuses on whether [Bryan]
provided sufficient evidence to permit a jury to find that he
ha[d] overcome, by a preponderance of the evidence, the
presumption that [the Hospital] would reasonably have
believed" that it had met the standards of section 11112(a).
Austin, 979 F.2d at 734.
[7] If a jury returns a verdict awarding damages to a
disciplined physician but the evidence at trial conclusively
demonstrates that the defendant has satisfied HCQIA standards
for peer review procedures (thereby being entitled to immunity
from monetary liability), then the court should grant a post-
trial judgment as a matter of law under Rule 50(b). We must
examine the record in this case to determine whether Bryan
satisfied his burden of producing evidence that would allow a
reasonable jury to conclude that the Hospital’s peer review
disciplinary process failed to meet the standards of HCQIA.
B.
[8] Before determining whether the procedural standards for
proper peer review proceedings were satisfied in this case, we
first note that the events and entities at issue here fall squarely
within the definitions of HCQIA’s operative terms. The
disciplinary action at issue here is the November 1990 decision
by the Holmes board of directors to revoke Bryan’s staff
privileges. The term "professional review action" is defined in
HCQIA as follows:
[A]n action or recommendation of a professional review
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BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
body which is taken or made in the conduct of professional
review activity, which is based on the competence or
professional conduct of an individual physician (which
conduct affects or could affect adversely the health or
welfare of a patient or patients), and which affects (or may
affect) adversely the clinical privileges . . . of the physician.
42 U.S.C. § 11151(9). The revocation of Bryan’s staff
privileges therefore qualifies as such a professional review
action; the statute seems to contemplate inclusion of the
recommendations upon which the board’s ultimate decision
was based--here, the recommendations of the Chanda panel
and the executive committee--within the scope of the relevant
conduct.
[9] A "professional review body" is defined as "a health care
entity and the governing body or any committee of a health
care entity which conducts professional review activity, and
includes any committee of the medical staff of such an entity
when assisting the governing body in a professional review
activity." Jd. § 11151(11). Furthermore, the term "health care
*? While its meaning is generally apparent, the statute does provide the
following definition of "professional review activity”:
[A]n activity of a health care entity with respect to an individual
physician--
(A) to determine whether the physician may have clinical privileges with
respect to, or membership in, the entity,
(B) to determine the scope or conditions of such privileges or
membership, or
(C) to change or modify such privileges or membership.
42 U.S.C. § 11151(10). Again, the termination of Bryan’s medical staff
privileges clearly falls within HCQIA definition.
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BRYAN vy. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
entity” includes "a hospital that is licensed to provide health
care services by the State in which it is located." Id §
11151(4)(A)(i). The Holmes decisionmakers in Bryan’s case
fall within those categories. As a result, the Hospital is
entitled to immunity from monetary liability under section
11111(a) of HCQIA if the peer review process met the
standards set forth in section 11112(a).
C.
[10] As stated above, a professional review action must
satisfy the four standards of section 11112(a) in order to
qualify for the immunity protections of section 11111(a). We
discuss each in turn and conclude that the Hospital’s
termination of Bryan’s clinical privileges met HCQIA
requirements.
l.
[11] First, a review of the record makes clear that the
decision to terminate Bryan’s clinical privileges at Holmes was
taken "in the reasonable belief that the action was in the
furtherance of quality health care." Jd § 11112(a)(1). This
prong of the HCQIA immunity test is met if "the reviewers,
with the information available to them at the time of the
professional review action, would reasonably have concluded
that their action would restrict incompetent behavior or would
protect patients." H.R.Rep. No. 903, at 10, reprinted in 1986
U.S.C.C.A.N. at 6293. The record in this case reveals that the
revocation of Bryan’s privileges was prompted by the
reasonable belief that dcing so would promote quality health
care. Bryan had exhibited a pattern of unprofessional conduct
A.45
BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
over a period of many years, and he was given a series of
opportunities to remedy his difficulties in interacting with other
staff members. Eventually, the Hospital concluded that, be-
cause of his behavior, Bryan’s presence in the operating room
and in patient rooms was disruptive and interfered with the
important work of other employees. Moreover, the board was
properly concerned about the circumstances surrounding the
misdirection of the two patients to surgery. Accordingly, the
Hospital dealt appropriately with the perceived situation in
terminating Bryan’s privileges.
At trial, Bryan asserted that the members of the board of
directors and the executive committee were primarily
motivated by personal animosity and not by concern for patient
care. He introduced no evidence, however, that such hostility
determined the outcome of the peer review process. Moreover,
Bryan’s "assertions of hostility do not support his position
(that the Hospital is not entitled to the HCQIA’s protections]
because they are irrelevant to the reasonableness standards of
§ i1112(a). The test is an objective one, so bad faith is
immaterial. The real issue is the sufficiency of the basis for
the [Hospital’s] actions." Austin, 979 F.2d at 734. We
therefore conclude that Bryan failed to provide sufficient
evidence to permit a jury to find that he had overcome, by a
preponderance of the evidence, the presumption that the
Hospital’s disciplinary action was taken in the reasonable
belief that it would further quality patient care.
2.
[12] Second, a review of the record reveals that the Holmes
board of directors took its action "after a reasonable effort to
A.46
BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
obtain the facts of the matter." 42 U.S.C. § 11112(a)(2). The
board terminated Bryan’s medical staff privileges only after
Bryan’s conduct had been evaluated by the executive
committee, the Chanda peer review panel, and an appellate
review panel of board members. Each of those groups
submitted reports to the board, which made its decision based
upon the documentary record developed during the various
peer review proceedings and after Bryan had the opportunity,
to make a presentation. Bryan introduced no competent
evidence at trial to suggest that the Hospital’s efforts to obtain
the facts before terminating his staff privileges were not
reasonable.
a
[13] Third, Bryan’s staff privileges were revoked only "after
adequate notice and hearing procedures [were] afforded to the
physician involved or after such other procedures as [were] fair
to the physician under the circumstances." /d. § 11112(a)(3).
As noted above, section 11112(b) sets forth the "safe harbor"
conditions that a health care entity must meet regarding
adequate notice and hearing. Section 111!12(b) provides as
follows:
A health care entity is deemed to have met the adequate
notice and hearing requirement of subsection (a)(3) of this
section with respect to a physician if the following
conditions are met (or are waived voluntarily by the
physician):
(1) Notice of proposed action
ape A ta eats elt os by 5)
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BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
The physician has been given notice stating--
(A)(i) that a professional review action has been proposed
to be taken against the physician,
(ii) reasons for the proposed action,
(B)(i) that the physician has the right to request a hearing
on the proposed action,
(11) any time limit (of not less than 30 days) within which
to request such a hearing, and
(C) a summary of the rights in the hearing under
paragraph (3).
(2) Notice of hearing
If a hearing is requested on a timely basis under
paragraph (1)(B), the physician involved must be given
notice stating--
(A) the place, time, and date, of the hearing, which date
shall not be less than 30 days after the date of the notice,
and
(B) a list of the witnesses (if any) expected to testify at
the hearing on behalf of the professional review body.
(3) Conduct of hearing and notice
If a hearing is requested on a timely basis under
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BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
paragraph (1)(B)--
(A) subject to subparagraph (B), the hearing shall be held
(as determined by the health care entity)--
(1) before an arbitrator mutually acceptable to the
physician and the health care entity,
(ii) before a hearing officer who is appointed by the entity
and who is not in direct economic competition with the
physician involved, or
(iii) before a panel of individuals who am appointed by
the entity and are not in direct competition with the
physician involved;
(B) the right to the hearing may be forfeited if the
physician fails, without good cause, to appear;
(C) in the hearing the physician has the right--
(1) to representation by an attorney or other person of the
physician’s choice,
(ii) to have a record made of the proceedings, copies of
which may be obtained by the physician upon payment of
any reasonable charges associated with the preparation
thereof,
(ii1) to call, examine, and cross-examine witnesses,
(iv) to present evidence determined to be relevant by the
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BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
hearing officer, regardless of its admissibility in a court of
law, and
(v) to submit a written statement at the close of the
hearing, and
(D) upon completion of the hearing, the physician
involved has the right--
(i) to receive the written recommendation of the arbitrator,
officer, or panel, including a statement of the basis for the
recommendations, and
(ii) to receive a written decision of the health care entity,
including a statement of the basis for the decision.
Id. § 11112(b).
As the summary of the facts of the case in part II of this
opinion reflects, each of these procedural requirements of
section 11112(b) was satisfied. Documents introduced at trial
indicate that the Hospital complied with the notice
requirements and that the hearings were hold in a timely
fashion and in accordance with the Hospital’s bylaws. Bryan
was afforded full rights of representation, cross-examination,
and confrontation.
Bryan’s principal argument is that the board of directors did
not have a transcript of the Chanda panel hearings when it ren-
dered its decision. Yet HCQIA, like the Holmes bylaws,
requires only that the Hospital ensure that a record of the
proceedings be made; Bryan had the responsibility to request
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BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
a complete transcript if he thought the board should have one,
and he did not.
It should be noted that section 11112(b) specifically
provides that the failure of a review body to meet the
enumerated conditions does not, per se, constitute a failure to
meet the standards of section 11112(a)(3). Indeed, "[i]f other
procedures are followed, but are not precisely of the character
spelled out in (section 11112(b)], the test of ‘adequacy’ may
still be met under other prevailing law." H.R.Rep. No. 903, at
10, reprinted in 1986 U.S.C.C.A.N. at 6393. Moreover, Bryan
made no contemporaneous objections to the manner in which
the hearing procedures were conducted; section 11112(b)
explicitly provides that compliance with its terms is not
required if the physician voluntarily waives them. On the
record of this cue, we conclude that no reasonable jury could
conclude that the Hospital had not afforded Bryan the adequate
procedures.
4.
[14] Finally, there is no question that the board decided to
terminate Bryan "in the reasonable belief that the action was
warranted by the facts known." 42 U.S.C. § 11112(a)(4).
Again, the record reveals that the board certainly had a factual
basis for its action. Bryan concedes that the incidents that led
to his termination actually occurred; his only argument is that
they did not justify the severe sanction he received. HCQIA
clearly grants broad discretion to hospital boards with regard
to staff privileges decisions. Accordingly, as in all procedural
due process cases, the role of federal courts "on review of such
actions is not to substitute our judgment for that of the
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BRYAN v. JAMES E. HOLMES
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hospitals governing board or to reweigh the evidence regarding
the renewal or termination of medical staff privileges."
Shahawy v. Harrison, 875 F.2d 1529, 1533 (11th Cir.1989).
No reasonable jury could conclude that Bryan had demon-
strated, by a preponderance of the evidence, that the Hospital
board did not act in the "reasonable belief that the
[termination] was warranted by the facts known after reason-
able effort to obtain facts" as required by section 11112(a)(4).
42 U.S.C. § 11112(a)(4).
IV.
In this case, a disciplined physician attempted to have a jury
revisit the adverse decision of his medical colleagues. This is
precisely the type of case that Congress targeted when passing
HCQIA: "[T]he intent of [the HCQIA] was not to disturb, but
to reinforce, the preexisting reluctance of courts to substitute
their judgment on the merits for that of health care
professionals and of the governing bodies of hospitals in an
area within their expertise." Mahmoodian v. United Hosp.
Ctr., Inc., 185 W.Va. 59, 404 S.E.2d 750, 756, cert denied, --
U.S. --, 112 S.Ct. 185, 116 L.Ed.2d 146 (1991).
Given that all of the section 11112(a) standards were
satisfied, we conclude that the Hospital was entitled to the
immunity from damages liability granted by HCQIA in §
11111(a).°° On the record developed at trial, Bryan could not
**. Because our holding on this point disposes of all of the claims in the
case, we need not reach the question of whether the Hospital was protected
from monetary liability under the Florida peer review statute, Fla.Stat.Ann.
§ 395-0115(5). Bryan has not appealed the district court’s refusal to grant
A.52
BRYAN v. JAMES E. HOLMES
REGIONAL MEDICAL CENTER
recover the damages awarded by the jury. The district court
therefore should have granted the Hospital’s post-trial motion
for judgment as a matter of law under Rule 50(b). According-
ly, we REVERSE the judgment of the district court denying
the Hospital’s motion for judgment as a matter of law.
IT IS SOQ ORDERED.
injunctive relief under the antitrust laws, thus we need not address the
merits of the antitrust causes of action.
A.53
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
FLOYD T. BRYAN & FLOYD T..,
BRYAN, M.D., P.A.,
Plaintiffs,
V. CASE NO. 90-0896-CIV-ORL-18
JAMES E. HOLMES REGIONAL,
MEDICAL CENTER a/k/a HOLMES
REGIONAL MEDICAL CENTER, INC.,
& OTHERS,
Defendants.
/
ORDER
In this action, plaintiffs allege federal and state claims
based on James E. Holmes Regional Medical Center’s
(HRMC) permanent revocation of Floyd T. Bryan, M.D.’s staff
privileges. Defendants filed motions to dismiss and for
summary judgment. Plaintiffs filed a response in opposition to
defendants’ motions. Based on a review of the case file and
the relevant law, the court DENIES the motion to dismiss and
GRANTS, in part, and DENIES, in part, defendants’ motions
for summary judgment.
I. FACTS
On January 1, 1978, HRMC advised Dr. Bryan of his
A.54
appointment to HRMC’s active medical staff. (Means Aff.,
Ex. 1.) Dr. Bryan practiced general and vascular surgery. The
parties do not dispute Dr. Bryan’s competence in his field of
medicine. From 1978 through 1990, Dr. Bryan verbally
corrected staff members for actions that he believed
endangered patients’ lives and submitted numerous letters to
HRMC’s administration both criticizing and commending staff
members. During this time, defendants Raymond A.
Armstrong, M.D.; Michael J. Foley, M.D. and Joseph A. Gurri,
M.D. also practiced general and vascular surgery at HRMC.
Dr. Foley stopped practicing medicine in 1985. Dr.
Armstrong, as Chairman of HRMC’s Department of Surgery,
oversaw the department and recommended corrective actions.
Dr. Foley, as HRMC’s Medical Director, investigated and
reported incidents of concern. Dr. Gurri, as President of
HRMC’s Medical Staff from 1988 to 1989, oversaw the
departments and recommended corrective actions. The
evidence suggests that Drs. Armstrong, Foley and Gurri
disliked the greater amount of time and money Dr. Bryan spent
on surgery, (Ayers Dep. at 36-40), and an HRMC nurse stated
that in her opinion they held grudges against Dr. Bryan
because of professional jealousy. (Ayers Dep. at 41, 70-71.)
Between 1978 and 1987, HRMC received
approximately twenty-five written complaints and incident
reports concerning Dr. Bryan’s allegedly disruptive behavior.
(Means Aff., Composite Ex. 2.) During that period, the
HRMC Executive Committee of the Medical Staff (Executive
Committee) advised Dr. Bryan that his behavior was
unacceptable and might result in temporary or permanent
disciplinary action. Dr. Armstrong and defendants Barry A.
Mills, M.D.; Lyle Saltzman, M.D.; Lynn Stoldt, R.N.; and Rita
Wheeler, R.N., were voting members and Dr. Foley was a
non-voting member of the Executive Committee.
Throughout 1987, HRMC continued to receive incident
A.55
reports concerning Dr. Bryan’s behavior. (Means Aff., Exs.
5-11.) In March 1988, based on the Executive Committee’s
recommendations, the vice president of HRMC’s medical staff
sent Dr. Bryan a letter advising Dr. Bryan that he would be
subjected to a graduated disciplinary structure. (Means Aff.,
Ex. 12.) In April 1988, HRMC received an incident report
that Dr. Bryan erupted in "a demeaning and profane tirade"
against two anesthesiologists. (Means Aff., Ex. 13.) The record
shows that problems existed between Dr. Bryan and the
anesthesiologist department which Dr. Saltzman headed.
(Sullivan Dep. at 218; Ayers Dep. at 33.) HRMC notified Dr.
Bryan of the incident report (Means Aff., Ex. 14.) and Dr.
Bryan requested an Executive Committee review of the
incident. The Executive Committee recommended a seven-day
suspension of Dr. Bryan’s privileges for his conduct and
HRMC’s president notified Dr. Bryan of the suspension and
his right to appeal it. (Means Aff., Exs. 15, 16.) Dr. Bryan did
not appeal the suspension.
In August 1988, HRMC sent Dr. Bryan notice of two
additional incident reports concerning his behavior. (Means
Aff., Ex. 19.) On November. 21, 1988, HRMC’s Board of
Directors (Board) approved the Executive Committee’s
recommendation that the Board reappoint Dr. Bryan to the
medical staff for one year as opposed to the two year period
that Dr. Bryan received in 1986. (Means Aff., Ex. 21.) Dr.
Armstrong and defendants Richard N. Baney, M.D.; Michael
V. Gatto; Mrs. James E. Gray, III; Martin W. Isenman, M.D.;
Maj. Gen. David M. Jones; Michael F. Maguire; Fred L.
McFarlin; John E. Miller, M.D.; Val M. Steele; Russell P.
Sullivan, Jr.; and John F. Turner, Jr. were members of the
Board.
In December 1988, the Executive Committee
recommended a four-week suspension based on Dr. Bryan’s
continued "disruptive behavior" and an incident involving
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"inappropriate" progress notes. (Means Aff., Ex. 22.) Dr.
Bryan requested an appeal of the suspension. (Means Aff., Ex.
23.) Before the appeal hearing began, HRMC received three
more incident reports concerning Dr. Bryan’s conduct and
gave Dr. Bryan the opportunity to respond to the reports by
written comments to the Executive Committee. (Means Aff.,
Ex. 24.) In May 1989, Dr. Bryan and the Executive
Committee presented testimony to a panel of physicians (1989
Panel). In its report, the 1989 Panel did not condone Dr.
Bryan’s actions. However, the 1989 Panel concluded that Dr.
Bryan had already received sufficient punishment without the
four-week suspension and criticized the Executive Committee’s
failure to follow proper incident report review procedures.
(Means Aff., Ex. 25.) After reviewing the 1989 Panel report,
the Executive Committee recommended a_ two-week
suspension. (Means Aff., Ex. 26.) Dr. Bryan requested an
appeal and an opportunity to present oral argument to a board
review panel. Based on the 1989 Panel report and oral
arguments, the Board Review Panel recommended that the
Board of Directors not impose the temporary suspension. The
Board Review Panel recommended instead that the Executive
Committee monitor Dr. Bryan’s behavior and that the Board
send Dr. Bryan notice that further display of unprofessional
conduct would result in permanent suspension. (Means Aff.,
Ex. 28) The Board accepted the Board Review Panel’s
recommendations and sent Dr. Bryan a letter detailing the
Board’s position. (Means Aff., Ex. 29.)
In March 1990, HRMC advised Dr. Bryan of two
incident reports concerning his behavior. The first report
stated that Dr. Bryan slapped a nurse’s hand and the second
report stated that Dr. Bryan misdirected a patient for surgery.
At Dr. Bryan’s request, the Executive Committee scheduled a
meeting to review the first incident report. (Means Aff., Exs.
33, 34.) At the Executive Committee meeting, Dr. Bryan and
1d setalnd ete
Pee Smee
A.57
the nursing personnel involved with the report gave conflicting
versions of the incident. (Means Aff., Ex. 35.) The Executive
Committee called a special meeting for further investigation.
At the special meeting, the Executive Committee conducted
additional interviews and concluded that the incident was not
of great significance. The Executive Committee recommend-
ed, however, a two-week suspension of Dr. Bryan’s privileges
based on his history of disruptive behavior. (Means Aff., Ex.
36.) On April 24, 1990, the president of HRMC notified Dr.
Bryan of the two-week suspension and his right to appeal and
request a hearing. (Means Aff., Ex. 38.)
Before Dr. Bryan received a hearing on the Executive
Committee’s action, HRMC received two more incident reports
concerning Dr. Bryan’s behavior. One report stated that Dr.
Bryan struck an operating room nurse with a surgical
instrument and the other involved a misdirected patient. The
Executive Committee interviewed Dr. Bryan and the staff
involved with the incidents. Drs. Gurri, Foley and Armstrong
and HRMC’s president commented about the long-term
problems with Dr. Bryan and the Board’s mandate to monitor
Dr. Bryan’s actions. Based on its finding of an escalation of
Dr. Bryan’s problems with the hospital staff and concern for
patient welfare, the Executive Committee imposed a summary
suspension of Dr. Bryan’s privileges and recommended a
permanent revocation of Dr. Bryan’s privileges. (Means Aff.,
Ex. 41.)
In response, Dr. Bryan requested a hearing by a panel
of his peers (1990 Panel). (Means Aff., Ex. 43.) At the 1990
Panel hearing, Dr. Bryan’s counsel presented witnesses and
evidence and cross-examined HRMC’s witnesses. (Means
Aff., Composite Ex. 48.) The 1990 Panel deliberated the issue
and concluded that the record supported the Executive
Committee’s recommendations. The 1990 Panel also found
that Dr. Bryan had a pattern of disruptive behavior that was
A.58
below acceptable standards and adversely affected the hospital
staff's ability to deliver quality patient care. Based on their
findings, the 1990 Panel recommended that the Board suspend
Dr. Bryan’s privileges for two years. (Means Aff., Ex. 49.)
The Executive Committee reviewed the 1990 Panel’s findings
but voted not to modify its original recommendations. (Means
Aff., Ex. 51.)
At Dr. Bryan’s counsel’s request, a board review panel
heard oral argument and reviewed the 1990 Panel record.
(Means Aff., Ex. 52.) The Board Review Panel recommended
that the Board adopt the Executive Committee’s recommenda-
tion of permanent revocation. (Means Aff., Ex. 53.) The Board
voted to affirm the Board Review Panel’s recommendation and
informed Dr. Bryan of its decision. (Means Aff., Ex 55.) The
chairman of the Board testified that the Board adopted the
Executive Committee’s recommendation over that of the 1990
Panel because the Board placed more trust in the Executive
Committee’s judgment. (Sullivan Depo. at 54-62.) The
chairman also stated that he had no knowledge that Dr.
Bryan’s conduct jeopardized or injured any patient. (Sullivan
Dep. at 119.) A nurse testified that other doctors at HRMC
lost their tempers with the staff; used non-verbal
communications in the operation room, such as striking a nurse
with an instrument; and misdirected patients, but was unaware
of HRMC revoking any other doctors’ privileges for such
conduct. (Ayers Dep. 14, 27, 58, 61-62, 71-72.) The nurse
also testified that superiors on the nursing staff singled out Dr.
Bryan when they instructed members of the nursing staff to
write incident reports and document them. (Ayers Dep. at
49-50.)
HRMC’s president notified the Division of Medical
Quality Assurance of the Department of Professional Regula-
tion of the State of Florida that HRMC had permanently
suspended Dr. Bryan’s privileges and its reasons for taking
ta on nat tai tal ARE "aaNet I
risitew
ae ee en eee ek oe may
A.59
such action. (Means Aff., Ex. 56.) The National Practitioner
Data Bank also received the information over Dr. Bryan’s
objections. (Means Aff., Ex. 57.)
Il. LEGAL DISCUSSION
A. Standards of Review
; Motions to Dismiss.
For purposes of a motion to dismiss, the court must
view the allegations of the complaint in the light most
favorable to the plaintiff and consider the allegations of the
complaint as true. See Quality Foods de Centro Am. S.A. v.
Latin Am. Agribusiness Dev. Corp., 711 F.2d 989, 994-95
(11th Cir. 1983). On a motion to dismiss for lack of subject
matter jurisdiction, the plaintiff has the burden of showing that
he has properly invoked the court’s jurisdiction. Barton v.
City of Eustis, 415 F. Supp. 1355, 1357 (M.D. Fla. 1976).
y Motions for Summary Judgment.
Summary judgment is authorized if "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56 (c); accord Anderson vy. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986). "[A]t the summary judgment stage the judge’s
function is not himself to weigh the evidence and determine
the truth of the matter but to determine whether there is a
genuine issue for trial." Anderson, 477 U.S. at 249. The
moving party bears the burden of proving that no genuine
issue of material fact exists. Celotex Corp. v. Catrett, 477
A.60
U.S. 317, 323 (1986). In determining whether the moving
party has satisfied the burden, all inferences drawn from the
underlying facts are considered in a light most favorable to the
party opposing the motion, and all reasonable doubts are
resolved against the moving party. Anderson, 477 US. at 255:
see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587-88 (1986). The non-moving party who bears
the burden of proof on the issue at trial must go beyond the
pleadings and submit affidavits, depositions, answers to
interrogatories, or admissions on file that designate "specific
facts showing that there is a genuine issue for trial." Celotex,
477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)).
B. Motions to Dismiss
Defendants Mills, Wheeler, Baney, Gatto, Gray,
Isenman, Jones, Maguire, McFarlin, Miller, Steele, Sullivan,
and Turner (state-only defendants) are parties to plaintiffs’
state claims not their federal claims. The state-only defendants
filed motions to dismiss plaintiffs’ claims against them alleging
no federal pendent party jurisdiction. However, 28 U.S.C.A. §
1367 expressly authorizes the exercise of pendent party
jurisdiction in any civil action of which the district courts have
original jurisdiction, except diversity jurisdiction, to the extent
pendent claims form part of the same case and controversy
under Article III of the Constitution. 28 U.S.C.A. § 1367.
Plaintiffs commenced this action after § 1367 became effective
and their complaint asserts federal jurisdiction based on federal
statutes, not diversity of citizenship. The state-only defendants
do not claim that plaintiffs’ federal and state claims arise out
of different controversies. Therefore, pursuant to § 1367,
plaintiffs’ complaint shows that federal jurisdiction exists for
plaintiffs’ claims against the state-only defendants.
4 Saeeaiele
A.61
ee Motions for Summary Judgment
1. Immunity
In their motions for summary judgment, defendants
contend that they are immune from plaintiffs’ suit for damages
under the Health Care Quality Improvement Act of 1986
(HCQIA), 42 U.S.C.A. §§ 11101-11152, and Florida Statutes
§§ 395.0115 and 766.101(3)(a). Although plaintiffs do not
specifically address the immunity statutes, they point to facts
that are relevant to the immunity issue in their opposition to
defendants’ motions for summary judgment.
(a) Federal (HCQIA) Immunity.
HCQIA immunity provides incentive and protection for
qualifying professional peer review action bodies and
individuals associated with or assisting the professional review
action. 42 U.S.C.A. § 11111(a), Austin v. McNamara, 731 F.
Supp. 934, 939 (C.D. Cal. 1990). To qualify for HCQIA
immunity, defendants must demonstrate that their review
actions concerning Dr. Bryan complied with the standards set
forth in 42 U.S.C.A. § 11112. § 11111(a). To satisfy the §
111112 [sic] standards, defendants must show that their review
actions were taken (1) in the reasonable belief that their
actions were in the furtherance of quality health care, (2) after
a reasonable effort to obtain the facts of the matter, (3) after
adequate notice and hearing was afforded to Dr. Bryan or after
such other procedures as were fair to Dr. Bryan under the
circumstances, and (4) in the reasonable belief that the action
was warranted by the facts known after such reasonable effort
to obtain facts and after meeting the notice and hearing
requirements. § 11112(a). A professional review action is
presumed to meet the standards unless the presumption is
A.62
rebutted by a preponderance of the evidence. /d.
In this action, defendants rely on the holding in Austin
to support their argument that they satisfied the § 11112
standards. In Austin, a medical executive committee summarily
suspended a doctor’s privileges and a judicial review
committee conditionally reinstated his privileges based on
evidence that the doctor’s treatment of a particular patient was
substandard and external evaluations indicated that the doctor’s
conduct created serious concerns in some areas. Austin, 731
F. Supp. at 938-40. The doctor filed an antitrust action against
the hospital and committee members alleging the defendants
conspired to restrain trade and monopolize the market. Jd. at
934. The Austin court granted the committees immunity
because the court found that the committees’ actions were
reasonably warranted by the facts. Jd. at 940.
Although defendants correctly point to the similarities
between Austin and this action, they fail to note the
distinctions between the two cases. In this action, defendants
rely on evidence that hearing panels gathered facts and
provided Dr. Bryan with adequate notice and hearings. Yet,
defendants disagreed with the hearing panels’ recommenda-
tions and imposed more severe disciplinary actions against Dr.
Bryan. Thus, unlike the committees in Austin which relied on
their own fact gathering to make their decisions, defendants in
this action reviewed the hearing panels’ findings but did not
adopt the panels’ recommendations. Further, unlike the
plaintiff in Austin who merely alleged a conspiracy with little
factual support, plaintiffs attack defendants’ reasons for their
actions as pretextual and support their claim with evidence that
Dr. Bryan’s conduct was not the type of conduct that a
hospital ordinarily sanctions by revoking a doctor’s privileges
and the Board had no evidence before it that Dr. Bryan’s
conduct placed particular patients in danger. Finally, the court
recognizes that permanent revocation of a doctor’s privileges
a il i DE a a Nan bin APSA TAD “Ail ets
A.63
is a more serious sanction than a temporary suspension or a
conditional reinstatement of privileges. Based on _ these
findings, the court concludes that a question remains whether
Dr. Bryan’s conduct reasonably warranted the permanent
revocation of his privileges.
(b) State Immunity.
Under the Florida immunity statutes, defendants are
protected from monetary liability if they acted without
intentional fraud. Fla. Stat. Ann. §§ 395.0115(5),
766.101(3)(a). Defendants contend that plaintiffs provide no
evidence to substantiate their claims of intentional fraud. The
record shows, however, that animosity existed between Dr.
Bryan and Drs. Armstrong, Foley, Gurri, and Saltzman; nurses
singled out Dr. Bryan for incident reports; defendants
disregarded the board review panels’ recommendations; Dr.
Bryan’s conduct was not the type of behavior ordinarily
subjected to permanent revocation of privileges; and
defendants had no evidence that Dr. Bryan’s conduct placed a
patient [sic]. Viewing this evidence in a light most favorable
to plaintiffs, the court finds a genuine issue whether defendants
acted without intentional fraud.
2. Count I: Federal Antitrust Claim
(a) Standing.
In Count I of their complaint, plaintiffs bring a private
cause of action under sections 4 and 16 of the Clayton Act, 15
U.S.C.A. §§ 15, 26 (West Supp. 1992) against defendants
HRMC, Foley, Armstrong and Gurri (antitrust defendants)
alleging violations of sections 1 and 2 of the Sherman Act, 15
U.S.C.A. §§ 1, 2. In their motions for summary judgment, the
A.64
antitrust defendants challenge plaintiffs’ standing under section
4 of the Clayton Act. Plaintiffs did not address the standing
issue in their response in opposition to defendants motions for
summary judgment.
Standing to bring an antitrust claim is a question of law
which the court determines by examining the allegations
contained in the complaint. Todorov v. DCH Healthcare
Authority 921 F.2d 1438, 1448 (11th Cir. 1991). To establish
a private right of action under Section 4 of the Clayton Act,
the court must determine whether (1) the plaintiff suffered
"antitrust injury," and (2) plaintiff is an efficient enforcer of
the antitrust laws. Jd. at 1449. The antitrust defendants allege
that plaintiffs fail to satisfy either requirement.
The antitrust defendants claim that plaintiffs lack
standing because their complaint asserts that the antitrust
defendants’ anticompetitive conduct prevents Dr. Bryan from
reaping the profits of his share of the market. See id. 1450-54
(finding that a doctor lacked standing because the antitrust
laws were not intended to permit one person to profit from
anticompetitive behavior.). However, because plaintiffs seek
competitive profits, see /d. at 1452 n. 23 (defining competitive
profits as those profits that would be earned when all qualified
physicians competed freely), the court finds that their injury
derives from some anticompetitive conduct and is the type of
injury the antitrust laws were intended to prevent, and thus,
qualifies as an antitrust injury. Contra Robles v. Humana
Hosp. Cartersville, 1992 WL 37642 at *8 (N.D. Ga. 1992)
(finding that a doctor failed to allege an antitrust injury, but
relying on cases in which courts determined whether the
plaintiffs showed an unreasonable restraint on trade as opposed
to whether the plaintiffs suffered an antitrust injury).
Even though plaintiffs sufficiently allege an antitrust
injury, plaintiffs must also show that they are efficient
enforcers of the antitrust laws. To determine whether plaintiffs
A.65
are efficient enforcers, the court must look at the directness of
the injury, the nature of the injury, the potential for duplicative
recovery of damages, and the existence of more direct victims
of the alleged antitrust violation who could bring suit.
Todorov, 921 F.2d at 1450-51. The antitrust defendants
contend that patients, insurers, and the government have
stronger interests in ensuring that prices and services remain
at competitive levels unlike plaintiffs whose interest is in
competing. Plaintiffs do not dispute the antitrust defendants’
position. Thus, because the antitrust defendants show that
more efficient enforcers of the antitrust laws exist, the court
finds that plaintiffs lack standing to bring a private action for
damages under section 4 of the Clayton Act. See Robles, 1992
WL 37641 at *8 (finding that if the defendants are acting
anticompetitively and are charging an inflated price or
providing inferior services for the same prices; the patients,
insurers, and government may bring action to enjoin the
defendants’ conduct); see also Todorov, 921 F.2d at 1455
(finding patients, insurers, and the government constitute a
class of persons whose self-interest would motivate them to
vindicate the public interest).
Although the antitrust defendants succeed in showing
that they are entitled to summary judgment as to plaintiffs’
standing to bring an action for damages under section 4 of the
Clayton Act, they do not provide grounds for summary
judgment as to plaintiffs’ standing to bring an action for
injunctive relief under section 16 of the Clayton Act. Because
courts are less concerned about whether the plaintiff is an
efficient enforcer of antitrust laws when the remedy is
equitable, Todorov, 921 F.2d at 1452; the court’s conclusion
that plaintiffs lack standing under section 4 because they are
not efficient enforcers does not show lack of standing under
section 16. Furthermore, because the court finds that plaintiffs
sufficiently allege an antitrust injury, plaintiffs’ have standing
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under section 16. Cf id. at 1454 (holding that the court’s
finding of no antitrust injury compels the court to conclude
that plaintiff has no standing to seek an injunction).
(b) Conspiracy.
The antitrust defendants claim that plaintiffs fail to
create a genuine issue that a conspiracy existed. To establish
a conspiracy, plaintiffs must show that (1) two or more
persons (2) conspired to restrain trade or monopolize.
Seagood Trading Corp. v. Jerrico, Inc., 924 F.2d 1555, 1573
(11th Cir. 1991); Todorov, 921 F.2d. at 1455, 1459. The
antitrust defendants argue that HRMC acted unilaterally in its
decision to revoke Dr. Bryan’s privileges because no
conspiracy existed.
Plaintiffs may establish a conspiracy by inferences
drawn from the antitrust defendants’ behavior but antitrust law
limits the range of permissible inferences. Matsushita, 475
U.S. at 588; Todorov, 921 F.2d at 1456. Further, plaintiffs
must show that the inference of conspiracy is reasonable in
light of the inferences of independent action. Matsushita, 475
U.S. at 588 (holding that plaintiffs bear the burden of
presenting evidence that reasonably tends to exclude the
possibility that the alleged conspirators acted independently).
HRMC claims that it revoked Dr. Bryan’s privileges to ensure
efficient operation of the hospital, and thus, compete with
other hospitals. Because HRMC presents a_ plausible
procompetitive reason for its decision, plaintiffs in this action
must satisfy a higher burden of proof. See Todorov, 921 F.2d
at 1456-58 (finding that a hospital’s interest in competing with
other hospitals presents a plausible procompetitive reason for
its actions, and thus, the plaintiff bears a higher burden of
proof).
The antitrust defendants correctly state that plaintiffs’
ERNE ee Wee ee ee
A.67
evidence that doctors in competition with Dr. Bryan
recommended that HRMC revoke Dr. Bryan’s privileges and
that HRMC relied on the doctors’ recommendation is
insufficient alone to create an inference of conspiracy. See
Todorov, 921 F.2d at 1458-59. Yet, plaintiffs do not rely
solely on the antitrust defendants’ opportunity to conspire.
Instead, plaintiffs challenge HRMC’s reasons for revoking his
privileges as pretextual based on evidence that Dr. Bryan’s
conduct was not the type of conduct that a hospital ordinarily
sanctions by revoking a doctor’s privileges and the Board had
no evidence before it that Dr. Bryan’s conduct placed any
patient in danger. Because plaintiffs present evidence of
pretextual reasons for the antitrust defendants’ actions, the
court finds that a reasonable jury could find plaintiffs’
evidence creates an inference of conspiracy. See Bolt v.
Halifax Hosp. Medical Ctr., 891 F.2d 810, 822, 827 (11th Cir.
1990) (holding that evidence of pretextual reasons for a
decision can show a conspiracy), cert. denied, 110 S. Ct. 1960
(1990).
(c) Monopoly.
HRMC contends that it is entitled to summary judgment
as to plaintiffs’ claim under section 2 of the Sherman Act
because HRMC does not compete in the same market as Dr.
Bryan. HRMC fails to note that plaintiffs allege that HRMC
conspired with Drs. Armstrong, Foley and Gurri who were Dr.
Bryan’s competitors. Accordingly, the court denies HRMC’s
motion for summary judgment as to plaintiffs’ section 2 claim.
See White v. Rockingham Radiologists, Ltd., 820 F.2d 98, 104
(4th Cir. 1987) (implying that one who conspires with a
competitor can be held liable as a monopolist in the market);
cf. Beard v. Parkview Hosp., 912 F.2d 138, 144 (6th Cir.
1990) (affirming dismissal of claims for monopolization and
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attempted monopolization against a defendant hospital because
it did not compete with the plaintiff, but not addressing a claim
for conspiracy to monopolize); Bozcar v. Manatee Hosps. &
Health Systems, Inc., 731 F. Supp. 1042, 1047 (M.D. Fla.
1990) (finding no cause of action for conspiracy to monopolize
because the plaintiffs failed to allege that the hospital or the
doctors competed in the relevant market).
Defendants Armstrong, Foley and Gurri claim that they
are entitled to summary judgment as to plaintiffs’ section 2
claim because plaintiffs fail to point to evidence showing a
specific intent to monopolize. Defendants Armstrong, Foley
and Gurri reason that because they present plausible
procompetitive reason for recommending the revocation of Dr.
Bryan’s privileges, the court cannot infer that they intended to
destroy competition or build a monopoly in the relevant
market. See White, 820 F.2d at 105; Castelli v. Meadville
Medical Ctr., 702 F. Supp. 1201, 1208 (W.D. Pa. 1988), aff'd
mem., 872 F.2d 411 (3d Cir. 1989). Yet, the court finds that
plaintiffs’ evidence that the antitrust defendants’ legitimate
reasons were pretextual, see supra section C.2.(b), creates a
genuine issue whether defendants Armstrong, Foley and Gurri
acted with an intent to monopolize. Cf White, 820 F.2d at 105
(granting summary judgment because plaintiff offered no proof
negating legitimate business practices); Castelli, 702 F. Supp.
at 1208 (granting summary judgment because plaintiff offered
no direct or circumstantial evidence of an intent to
monopolize).
3. Count VI: State Antitrust Claim.
In Count VI, plaintiffs allege that the antitrust
defendants violated Florida’s antitrust laws. Fla. Stat. ch. 542.
Section 542.32 of the Florida Statutes provides authority for
construing Florida antitrust laws based on federal courts’
A.69
interpretation of comparable federal antitrust statutes. Because
Florida’s damages provision, closely tracks the language of
section 4 of the Clayton Act, the court should find that
plaintiffs have no standing to bring a damages claim under
Florida antitrust law. Reitz v. Canon U.S.A., Inc., 695 F. Supp.
552, 553 (S.D. Fla. 1988).
4. Count II: Civil Rights Claim.
Plaintiffs bring a cause of action under 42 U.S.C. §
1983, alleging that defendants HRMC, Armstrong, Foley,
Gurri, Saltzman and Stoldt (civil rights defendants) violated
Dr. Bryan’s rights to due process and equal protection.
Plaintiffs allege that the civil rights defendants acted under the
color of state law because (1) HRMC is a non-profit
organization operating a general hospital under the laws of
Florida, (2) the civil rights defendants receive substantial funds
directly or indirectly from the United States government for
services rendered to patients eligible under Medicare and
Medicaid programs, and thus, are subject to regulation by the
United States government under 20 C.F.R. § 405, and (3)
HRMC receives substantial federal, state and local tax benefits
by virtue of its non-profit status. In their motions for summary
judgment, the civil rights defendants claim that plaintiffs’
allegations fail to show state action as required by § 1983.
Plaintiffs did not respond to the civil rights defendants’
arguments.
To establish state action under § 1983, plaintiffs must
show that the civil rights defendants’ alleged infringement of
federal rights is fairly attributable to the state. Boczar, 731 F.
Supp. at 1045. Courts have found evidence of federal and state
funding and tax benefits insufficient to establish state action.
Id. Further, state regulation does not create state action
without evidence that the state coerced or significantly
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encouraged the civil rights defendants’ actions. Flagg Bros.,
Inc. v. Brooks, 436 U.S. 149, 164-66 (1978); Waters v. St.
Francis Hosp., Inc., 618 F.2d 1105,1107 (Sth Cir. 1980);
Boczar, 731 F. Supp. at 1045. Because plaintiffs present no
evidence that the state compelled the civil rights defendants’
actions, the court grants summary judgment in favor of the
civil rights defendants on Count II. See Waters, 618 F.2d at
1107.
5. Count III: Federal Contract Claim.
Plaintiffs allege that HRMC breached a contract with
the United States government because it failed to comply with
federal medicare regulations as provided in 42 U.S.C. §§
1395-1395cce [sic] (Medicare Act) and 20 C.F.R. § 405.1023.
HRMC claims that the Medicare Act does not entitle plaintiffs
to a third-party beneficiary action. To bring a private cause of
action, plaintiffs must show either express or implied authority
in the statute. Cort v. Ash, 422 U.S. 66, 68-69 (1975); see
Goldsmith v. Harding Hosp., Inc., 762 F. Supp. 187, 188 (S.D.
Ohio 1991) (outlining the factors that a court should consider
to determine whether a statute implicitly provides a private
cause of action).
Plaintiffs provide no grounds for the court to find
express or implicit authority in the Medicare Act for plaintiffs
to bring a private cause of action. Moreover, HRMC cites
caselaw to support its position that a private remedy is not
implicit in the Medicare Act. Robinson v. Magovern, 456 F.
Supp. 1000, 1001 (W.D.Pa. 1978). In addition to finding no
implicit private remedy in the Medicare Act, the Robinson
court noted that § 1395 provides that "nothing in this
subchapter shall be construed to authorize any federal officer
or employee to exercise any supervision or control over...
the selection, tenure, or compensation of any officer or
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A.71
employee of any institution, agency, or person providing health
services." Jd. Because plaintiffs fail to show that the Medicare
Act provides either an express or implicit private cause of
action, the court grants summary judgment in favor of HRMC
on Count III.
6. Counts VII: Defamation - Slander.
Plaintiffs allege that Dr. Armstrong is liable for slander
because he knowingly and maliciously published false
statements about Dr. Bryan. Plaintiffs further allege that
defendants Foley, Gurri, Mills, Saltzman, Stoldt and Wheeler
(slander defendants) are liable for Dr Armstrong’s slanderous
statements. Although plaintiffs do not allege that the slander
defendants authorized or published false statements about Dr
Bryan, plaintiffs evidently rely on their conspiracy allegations
to connect the slander defendants with the alleged statements.
In their motions for summary judgment, the slander defendants
contend that because plaintiffs fail to show a conspiracy, they
fail to establish the slander defendants liability The court finds,
however, sufficient evidence to create a genuine issue whether
a conspiracy exists, and thus, the slander defendants do not
provide sufficient grounds for the court to grant summary
judgment on Count VIII.
7. Count X: Negligence
Plaintiffs allege that defendants Armstrong, Baney,
Gatto, Gray, Isenman, Jones, Maguire, McFarlin, Steele,
Sullivan and Turner (Board member defendants) are liable for
negligent failure to supervise, manage and advise various
HRMC committees. Plaintiffs base their negligence claim on
the board member defendants’ alleged duty to insure that
HRMC’s committees followed the Medical Staff Bylaws,
EERE ae i eg i oo ic et a ae A >
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Rules and Regulations with the regard to the review of any
physician’s clinical privileges. Plaintiffs provide no authority
for their claim that the Board member defendants owed a duty
to Dr Bryan. Moreover, Florida negligence law indicates that
the Board owed a duty only to patients. See Insinga v.
LaBella, 543 So. 2d 209, 214 (Fla 1989) (finding that a
hospital owes a duty to patients to assure the competence of
medical staff and personnel through its selection and review
process); see also Fla. Stat. §§ 395.01115(1) [sic] (stating that
the legislative intent for establishing peer review procedures is
to secure quality medical care to Florida citizens), 766.110(1)
(establishing hospital liability for failure to exercise due care
in fulfilling statutory duties when such failure is the proximate
cause of injury to a patient). Therefore, the court finds that
plaintiffs fail to establish an essential element of their
negligence action, and thus, grants summary judgment on
Count X. See Tieder v. Little, 502 So. 2d 923, 925 (Fla. Dist.
Ct. App. 1987) (holding that to maintain a negligence cause of
action, one element that a plaintiff must prove is a duty to
conform to a certain standard of conduct for the protection of
others, including the plaintiff), review denied, 511 So. 2d 298
(Fla 1987).
III. Conclusion
The court finds that federal jurisdiction exists over the
state-only defendants pursuant to 28 U.S.C.A. § 1367, and
thus, DENIES the state-only defendants’ motions to dismiss
(Docs. 48, 50) With regard to the motions for summary
judgment, the court finds that the undisputed facts, as well as
the reasonable inferences drawn from the facts, do not
establish a genuine issue of material fact that would justify
bringing plaintiffs’ civil rights, federal contract, and negligence
claims (Counts II, III, X) to trial. Accordingly, the court
:
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GRANTS partial summary judgment in favor of defendants on
Counts II, III and X. The court further finds that plaintiffs lack
standing to bring a cause of action for damages but are entitled
to a claim for injunctive relief under federal and state antitrust
laws. Thus, the court GRANTS summary judgment in favor of
defendants as to plaintiffs’ claim for damages and DENIES
summary judgment on their claim for injunctive relief under
state and federal antitrust laws. (Counts I, IV) Because
genuine issues of fact exits [sic] as to defendants right to
protection under federal and state immunity statutes and as to
plaintiffs’ federal and state antitrust, state contract, interference
with prospective economic advantage, intentional infliction of
emotional distress and defamation claims (Counts I, IV-IX) the
court DENIES defendants’ motions for summary judgment as
to those claims. (Docs. 44, 46, 48, 50) The court GRANTS
plaintiffs’ motion to strike affidavits and defendants’ motion
for leave to file amended affidavits. (Docs. 86, 97)
It is SO ORDERED in Orlando, Florida, this 20th day
of May 1992.
/s/ G. Kendall Sharp
G. KENDALL SHARP
United States District Judge
Copies to all counsel of record
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
FLOYD T. BRYAN &
FLOYD T. BRYAN, M.D., P.A.
Plaintiffs,
V. CASE NO. 90-0896-CIV-ORL-18
JAMES E. HOLMES REGIONAL
MEDICAL CENTER a/k/a HOLMES
REGIONAL MEDICAL CENTER, INC.,
& OTHERS,
Defendants.
/
ORDER
This action is before the court on the parties’ post-trial
motions. Floyd T. Bryan (Bryan) filed motions for injunctive
relief, to amend judgment to include injunctive relief, and for
attorneys fees. Holmes Regional Medical Center (HRMC)
responded to Bryan’s motions. HRMC filed motions for
judgment as a matter of law on Bryan’s contract claim, for
judgment as a matter of law on Bryan’s antitrust claims, to
correct judgment, for new trial, for remittitur, to strike
attorneys fees, and to review taxation of costs. Bryan then
filed motions to strike HRMC’s post-trial motions, HRMC’s
motion to review taxation of costs, and HRMC’s memoranda
in support of its motions for judgments as a matter of law.
Bryan also responded in opposition to HRMC’s post-trial
eT ee a ne ae ee OF
PL Pe tusiR
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motions.
I. Facts
Plaintiffs filed a complaint against defendants which
asserted various causes of action allegedly arising out of
defendants’ participation in terminating Bryan’s staff privileges
at HRMC. Before and during trial, the court ruled in favor of
defendants on each of plaintiffs’ causes of action except their
causes of action for breach of contract and violation of
antitrust laws. As to the contract and antitrust claims, the
court found that only HRMC is subject to liability. The court
further held that plaintiffs did not have standing to claim
damages under the antitrust laws but could seek injunctive
relief. Although the complaint included a general request for
injunctive relief, it did not specify the type of relief plaintiffs
sought.
On June 17, 1992, a jury returned a verdict in favor of
plaintiffs. The jury found that HRMC breached its contract
with plaintiffs. Plaintiffs requested six million dollars in
damages, comprised of approximately one million dollars for
loss of past earnings and five million dollars for loss of future
earnings. HRMC contested Bryan’s damages claim. The jury
determined that Bryan’s damages amounted to approximately
four million dollars.
The jury also found that HRMC violated state and
federal antitrust laws and that its violation caused Bryan injury.
After the jury rendered its verdict, Bryan submitted a motion
for injunctive relief which asks the court to (1) require HRMC
to retract its reports to the State Medical Board and the
National Practitioners Data Bank (NPDB) which were based
on HRMC’s illegal revocation of Bryan’s privileges; (2)
require HRMC to obtain from NPDB a complete list of all
entities who received information concerning HRMC’s
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revocation of Bryan’s privileges and to mail the retraction
mentioned above to the entities on the list; (3) enjoin HRMC,
its officers, agents and employees from continuing to publish
reports that Bryan struck, slapped, or hit various members of
the operating team and that Bryan is a disruptive or
unprofessional physician and from publishing or using any
other defamatory language that demeans Bryan’s conduct while
he practiced at HRMC; and (4) retain jurisdiction to enforce
the above provisions.
II. Legal Discussion
A. Injunctive Relief
Section 16 of the Clayton Act entitles any person to sue
for and obtain injunctive relief against threatened loss or
damage by a violation of the antitrust laws under traditional
equity principles. 15 U.S.C.A. § 26. Traditional equity
principles dictate that injunctive relief is warranted in this
action if Bryan shows (1) a violation of the antitrust laws and
(2) continuing irreparable harm if an injunction is not issued
and a lack of an adequate remedy at law. See Newman v.
State of Alabama, 683 F.2d 1312, 1319 (11th Cir. 1982), cert.
denied, 460 U.S. 1083 (1983); Credit Bureau Reports, Inc. v.
Retail Credit Co., 476 F.2d 989, 992 (Sth Cir. 1973); see also
Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)
(defining the traditional bases for injunctive relief as
irreparable jury and inadequate legal remedy). The court must
also consider whether the relief requested fulfills the primary
purposes of the antitrust laws which courts define as ending
illegal conduct, depriving violators of benefits of the conduct,
and restoring competition to the marketplace. See Arthur S.
Langenderfer, Inc. v. S.E. Johnson Co. 729 F.2d 1050, 1059
(6th Cir.), cert. denied, 469 U.S. 1036 (1984); Ohio-Sealy
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Mattress Mfg. Co. v. Sealy, Inc., 669 F.2d 490, 495 (7th Cir.),
cert. denied, 459 U.S. 943 (1982); In re Multidistrict Vehicle
Air Pollution, 538 F.2d 231, 234-35 (9th Cir. 1976); see also
Weinberger, 456 U.S. at 320 (recognizing courts’ judicial
power to enforce statutes in accord with traditional practices,
as conditioned by the public interest which Congress seeks to
protect).
Bryan does not seek an injunction to prevent HRMC
from continuing its practice of revoking staff privileges in
violation of the antitrust laws. Instead, Bryan contends that
the relief requested is necessary to eliminate the consequences
of HRMC’s illegal acts and to ensure that they do not recur.
Although courts have recognized Bryan’s grounds for relief as
types of harm subject to antitrust regulations, see Zenith Radio
Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 132 (1969);
Weiss v. York Hosp., 745 F.2d 786, 829-30 (3d Cir. 1984),
cert. denied, 470 U.S. 1060 (1985); Paschall v. Kansas City
Star Co., 695 F.2d 322, 335 (8th Cir. 1982) (citing United
States v. United States Gypsum Co., 340 U.S. 76 (1950)), rev’d
on reh’g on other grounds, 727 F.2d 692 (8th Cir.), cert.
denied, 469 U.S. 872 (1984), Bryan must also show that he
lacks and adequate remedy at law and a significant threat of
injury. Newman, 683 F.2d at 1319; Credit Bureau Reports,
476 F.2d at 992; Fuchs Sugars & Syrups, Inc. v. Amstar Corp.,
380 F. Supp. 441, 443 (S.D.N.Y. 1974).
Bryan claims that the professional reports and HRMC’s
continuing publications will prevent him from obtaining staff
privileges at another health care facility. According to Bryan,
because the jury awarded him four million dollars rather than
six million dollars in damages, the jury did not consider the
damage that the professional reports and HRMC’s continuing
publications would cause to his ability to resume his practice.
Although the jury did not award Bryan the entire amount that
he requested, based on Bryan’s evidence, approximately one
A.78
million dollars of the damages requested by Bryan were
allocated to loss of past income, and thus, the jury awarded
approximately three million dollars in damages for loss of
future income. Bryan presents no evidence while calculating
the three million dollars in losses of future income, the jury
failed to include losses the professional reports and HRMC’s
continuing publications would create. Furthermore, at the time
the jury submitted its verdict, it was unaware of the injunctive
relief that Bryan intended to seek. Accordingly, the court
finds that Bryan fails to show that his monetary damages do
not compensate him for any injury the professional reports and
HRMC’s continuing publications may cause to his ability to
resume his practice.
Even if the jury award did not include monetary
damages for future losses arising out of the professional
reports and HRMC’s continuing publications, Bryan fails to
show a significant threat of injury. As to the professional
reports, if HRMC fails to amend its reports, Bryan can dispute
the accuracy of the reports and, under the NPDB system, the
Secretary of the United States Health and Human Services
Department will send an amended report to anyone who
received the original report concerning Bryan’s conduct at
HRMC. See 45 C.F.R. § 60.14. As to the alleged threat of
defamatory statements, although Bryan submitted evidence that
HRMC continues to make statements concerning Bryan’s
conduct at HRMC, the court found similar pre-trial statements
insufficient to support a defamation claim. Thus, Bryan fails
to show that HRMC’s post-trial conduct constitutes a
significant threat of injury in the form of defamation.
Finally, the court recognizes that the Seventh Circuit
Court of Appeals affirmed a district court order that granted
injunctive relief similar to the relief requested in this action.
See Wilk v. American Medical Ass’n, 895 F.2d 352, 367-68
(7th Cir.), cert. denied sub nom. Wilk v. Joint Comm. on
BURBS AeA ule 2
A.79
Accreditation of Hosp., 496 U.S. 927 (1990). However, the
Seventh Circuit noted that the district court made no findings
on the issue whether the plaintiffs had an adequate remedy at
law, and thus, the appellate court refused to address the
defendant’s untimely and poorly developed claim that the
plaintiffs had an adequate remedy at law. /d. at 370 n.5.
Therefore, the holding in Wilk does not change the outcome of
this action. Because the court finds that Bryan has an
adequate remedy at law, the court denies Bryan’s motion for
injunctive relief and to amend judgment to include injunctive
relief.
B. Other Post-Trial Motions
Bryan filed a motion to strike all of HRMC’s post-trial
motions as untimely because Bryan erroneously believed the
[sic] July 3, 1992 was not a federal holiday. A review of the
recognized federal holidays reveals, however, that when July
4 falls on a Saturday, July 3 is a federal holiday. Therefore,
because HRMC filed its post-trial motions within ten days of
entry of judgment, excluding weekends and federal holidays
and allowing three days for service by mail, the court denies
Bryan’s motion to strike. See Fed. R. Civ. P. 6(a), (c); 50(b);
52(a); 59(b).
As to HRMC’s motions for judgments as a matter of
law, the court grants HRMC’s motion to submit supplemental
authority in support of its motions. However, even considering
HRMC’s supplemental authority, the court finds that HRMC
fails to show the absence of a legally sufficient basis for a
reasonable jury to find in favor of Bryan, and thus, denies
HRMC’s motions for judgments as a matter of law. See Fed.
R. Civ. P. 50 (a), (b). Because the court denies HRMC’s
motions, the court denies as moot Bryan’s motion to strike
HRMC’s memoranda in support of its motions for exceeding
A.80
the twenty-page limit.
HRMC claims that it is entitled to a new trial because
the jury verdict is not supported by the weight of evidence and
because the court committed prejudicial errors. The court
finds, however, HRMC fails to support its claims and thus,
denies HRMC’s motion for a new trial. See Fed. R. Civ. P.
59(a).
In its motion for remittitur, HRMC asks the court to
reduce the amount of damages awarded by the jury to reflect
the impact of the injunctive relief on Bryan’s future losses.
Because the court denies Bryan’s motion for injunctive relief,
the court finds no grounds for reducing the amount of
damages, and thus, denies HRMC’s motion for remittitur.
HRMC asks the court to correct the final judgment
entered in favor of the individual defendants on June 22, 1992
to include the court’s dismissal of Count VII against HRMC.
HRMC correctly observes that the court’s directed verdict on
Count VII included dismissing plaintiffs’ claim against HRMC.
Further, a review of the file shows that neither the final
judgment dismissing the action against the individual
defendants nor the final judgment against HRMC on Bryan’s
contract and antitrust claims reflect the court’s dismissal of
Count VII against HRMC. Bryan argues that the court should
not amend the final judgment against the individual defendants
because HRMC stands in a different position than the
individual defendants. Specifically, Bryan notes that the court
dismissed the entire action against the individual defendants
but dismissed only Count VII against HRMC. Yet, the court
entered the final judgment in favor of the individual defendants
to account for plaintiffs’ claims that were not submitted to the
jury. Because plaintiffs’ Count VII against HRMC was not
submitted to the jury, the court finds that the dismissal of
Count VII against HRMC should be included in the final
judgment against the individual defendants, and thus, grants
¥ RAR Se
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HRMC’s motion to correct judgment.
The court defers ruling on the motions concerning
taxation of costs and refers the motions involving attorneys
fees to the magistrate judge.
III. Conclusion
Because the court finds that Bryan fails to show that he
lacks an adequate remedy at law, the court DENIES his
motions for injunctive relief and to amend judgment to reflect
injunctive relief. (Docs. 189, 190.) The court finds that
HRMC filed its post-trial motions within the time allotted by
the Federal Rules of Civil Procedure, and thus DENIES
Bryan’s motions to strike HRMC’s post-trial motions and to
strike HRMC’s motion to review taxation of costs (Docs. 219,
226.) The court GRANTS HRMC’s motion to submit
supplemental authority (Doc. 232). The court DENIES
HRMC’s motions for judgments as a matter of law, new trial,
and remittitur, (Docs. 198, 201, 203, 205), and DENIES as
moot Bryan’s motion to strike HRMC’s memoranda in support
of its motions for judgments as a matter of law. (Doc. 220.)
Because the final judgment disposing of all the claims that
were not submitted to the jury fails to reflect that the court
dismissed Count VII against HRMC on motion for directed
verdict, the court GRANTS HRMC’s motion to correct
judgment. (Doc. 200.) The court DEFERS ruling on the
motions concerning taxation of costs, (Docs. 211, 227), and
REFERS the motions involving attorneys fees to the magistrate
judge. (Docs. 191, 212, 215.)
It is SO ORDERED in Orlando, Florida, this 27 day of
August 1992.
/s/_ G. Kendall Sharp
G. KENDALL SHARP
United States District Judge
Copies to all counsel of record
A.82
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
FLOYD T. BRYAN and
FLOYD T. BRYAN, M.D., P.A.,
Plaintiffs,
VS. Case No. 90-896-CIV-ORL-18
JAMES E. HOLMES REGIONAL
MEDICAL CENTER a/k/a HOLMES
REGIONAL MEDICAL CENTER, INC.,
et al.,
Defendants.
/
MOTION FOR JUDGMENT AS A
MATTER OF LAW PURSUANT TO RULE 50(b)
Defendant JAMES E. HOLMES REGIONAL
MEDICAL CENTER a/k/a HOLMES REGIONAL MEDICAL
CENTER, INC. ("Holmes"), by and through its undersigned
counsel, moves for entry of judgment as a matter of law
against the Plaintiff, FLOYD T. BRYAN ("Bryan") pursuant
to Rule 50(b), Fed. R. Civ. P. As grounds therefor, the
Holmes states:
1. The jury, by special verdict form, found that
Holmes breached the provisions of its bylaws, and that Bryan
suffered monetary damages in the amount of $4,181,220.00 as
a result of such breach. This Court entered judgment on that
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special verdict on June 22, 1992.' This verdict does not
conform to the requirements of law and is not supported by
the evidence. If permitted to stand, the verdict jeopardizes the
hospital peer review process which both Congress and the
Florida Legislature have endorsed by a grant of presumptive
immunity to participants therein. This verdict must therefore
must be set aside.
2. Courts and juries are not permitted to substitute
their judgment for that of a hospital’s governing board.
Rather, the limited role of the court and the jury in review of
hospital staff decisions is to assure that the requirements
imposed by the Board are reasonably related to the operation
of the hospital and fairly administered. Shahawy v. Harrison,
875 F.2d 1529, 1533 (11th Cir. 1989). The evidence present-
ed at trial conclusively shows that Holmes’ decision to
terminate Bryan’s staff privileges was reasonably related to the
orderly and efficient operation of the hospital and treatment of
patients, and that the procedures for disciplinary action adopted
in Holmes’ bylaws were fairly and properly administered. A
grant of judgment to Bryan is therefore not supported by law,
and is clearly erroneous.
3. The actions taken by Holmes in the proceedings
leading to the termination of Bryan’s staff privileges were
undisputedly part of the peer review process authorized by
' Holmes interprets the Court’s June 22, 1992 Judgment on behalf
of Bryan to indicate that this Court has reserved ruling on Bryan’s antitrust
claims. Holmes has accordingly filed a renewed motion for judgment as
a matter of law under Rule 50(a), Fed. R. Civ. P., addressing the antitrust
claims. If Holmes is in error, and the June 22, 1992 Judgment addresses
both the breach of contract and antitrust claims, Holmes requests that the
motion regarding the antitrust issues be considered as part of this motion
under Rule 50(b), and that Holmes be permitted to exceed the twenty page
limit on memorandum of law imposed by Local Rule 3.01.
A.84
§395.0115, Fla. Stat. The Florida Legislature has provided a
presumptive grant of immunity from any claims for monetary
damages to hospitals and physicians participating in the peer
review process authorized by §395.0115(5), Fla. Stat., absent
a showing of intention fraud by the Hospital. Section
395.0115(5), Fla. Stat.
4. To prove intentional fraud under Florida law, Bryan
is required to prove 1) that Holmes created or induced charges
against Bryan that were false; 2) that Holmes knew the charges
were false; and 3) that Holmes submitted the false charges
against Bryan with the intent that they be relied upon by the
members of the Medical Executive Committee, the peer review
panels, and the Board. Taylor v. Kenco Chemical and Mfg.
Corp., 465 So.2d 581, 589 (Fla. 1st D.C.A. 1985); Barrett v.
Guesnel, 90 So.2d 706 (Fla. 1956). Bryan has failed to
present any competent evidence to show any of these essential
elements necessary to prove intentional fraud on the part of
Holmes. A grant of judgment to Bryan therefore violates the
requirements of §395.0115(5), Fla. Stat., and is clearly
erroneous.
5. Congress has granted immunity from any claims for
monetary damages to hospitals and physicians participating in
the peer review process by enactment of the Health Care
Quality Improvement Act ("HCQIA"), 42 U.S.C.A. §11101, et
seq. The HCQIA provides a presumption of validity to peer
review proceedings that must be overcome by the complaining
physician. 42 U.S.C.A. §11111(a); Austin v. McNamara, 731
F.Supp. 934, 942 (C.D. Cal. 1990); Fobbs v. Holy Cross
Health Systems Corp, 1992 WL 78727 (E.D. Pa. 1992). The
evidence produced at trial conclusively establishes that
Holmes’ actions in the events and proceedings leading to the
termination of Bryan’s staff privileges complied with all
requirements of the HCQIA. A grant of judgment to Bryan
therefore violates the requirements of 42 U.S.C.A. § 11111(a),
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A.85
and is clearly erroneous.
6. There is no permissible basis to distinguish this
action from Austin, and the grant of immunity from any
liability for monetary damages afforded to the hospital in
Austin under the HCQIA should apply equally to Holmes.
Any attempt to distinguish this case on the basis that 1) the
disciplinary action adopted by Holmes differed from that of the
Chanda Panel; 2) Bryan claims that Holmes’ stated reasons
for terminating his privileges were pretextual; or 3) the
disciplinary action taken by Holmes against Bryan was more
severe than the actions taken against Dr. Austin, is not
supported by the language of the HCQIA, the legislative
history or existing case law.
7. Bryan has failed to offer evidence at trial upon
which a reasonable jury could determine that Holmes
materially breached the provisions of its bylaws. As
recognized by this Court in its May 20, 1992 Order granting
summary judgment to Holmes on Bryan’s claims under 42
U.S.C.A. §1983, Bryan has no right to challenge the "fairness"
of the provisions of the bylaws. He is only entitled to sue for
material breach of the provisions of the bylaws to which he
agreed to be bound upon his appointment to the staff at
Holmes. Lawler _v. Eugene Wuestoff Memorial Hospital
Assn., 497 So.2d 1261 (Fla. Sth DCA 1989).
8. Even if Bryan were able to prove the minor
violations of the bylaws which he claimed occurred, such
violations could not be the proximate cause of any injury to
Bryan. There is no reasonable basis to conclude that the
termination of Bryan’s staff privileges was caused by anything
other than Bryan’s disruptive behavior and the legitimate
concerns of Holmes and all other participants in the peer
review process for Holmes’ staff and patients. A grant of
judgment to Bryan is therefore clearly erroneous.
9. Due to the twenty (20) page limitation imposed by
A.86
the Local Rules, Holmes cannot address all of the issues which
would provide support for this Motion. However, failure to
present an issue in this Memorandum shall not be considered
as a waiver of the issues for appeal purposes. Holmes reserves
the right to fully address any issues omitted herein on appeal.
WHEREFORE, Defendant JAMES E.
HOLMES REGIONAL MEDICAL CENTER a/k/a
HOLMES REGIONAL MEDICAL CENTER, INC.
requests that this court enter judgment against Plaintiff
FLOYD T. BRYAN as a matter of law, in accordance with
Rule 50(b), Fed. R. Civ. P.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of
the foregoing and the memorandum of law in support thereof
was furnished by U.S. Mail to George H. Moss, Esq., Post
Office Box 3406, Vero Beach, FL 32964-3406; Joseph P.
Metzger, Esq., 1616 Forum Place, Suite 300, West Palm
Beach, FL 33407-2384; and to Larry Klein, Esq., Suite 503,
Flagler Center, 501 South Flagler Drive, West Palm Beach, FL
33401 this _7th_ day of July, 1992.
/S/ Christopher _K. Kay
Christopher K . Kay
Florida Bar No. 0385931
Ronald M. Schirtzer
Florida Bar No. 0501662
FOLEY & LARDNER
111 North Orange Avenue, Suite 1800
Post Office Box 2193
Orlando, Florida 32802-2193
(407) 423-7656
Attorneys for the Defendant
JAMES E. HOLMES REGIONAL
MEDICAL CENTER a/k/a HOLMES
REGIONAL MEDICAL CENTER
Sa OER Re ar Cee Me RED GH
aah Seite Gee toch
Naik etal ala Raabe
A.87
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 92-2963
FLOYD T. BRYAN, FLOYD T. BRYAN,
M.D., P.A.,
Plaintiffs-Appellees-Cross-Appellants,
versus
JAMES E. HOLMES REGIONAL MEDICAL
CENTER, a/k/a Holmes Regional Medical Center, Inc.,
Defendants-Appellant-Cross-Appellee,
RAYMOND A. ARMSTRONG, M.D., Individually and as
Chairman, Department of Surgery, HRMC, and as member of
the Board of Directors, HRMC, MICHAEL H. FOLEY, M.D..,
Individually and as Medical Director, HRMC, MICHAEL V.
GATTO, Individually and as Member of the Board of
Directors, HRMC, JAMES E. GRAY, III, Individually and as
Secretary of the Board of Directors, HRMC, JOSEPH A.
GURRI, M.D., Individually and as Chief of Medical Staff,
HRMC, MARTIN W. ISENMAN, M_D., Individually and as
Member of Board of Directors, HRMC, DAVID M. JONES,
Maj. Gen., (Retired), Individually and as Treasurer of the
Board of Directors, HRMC, MICHAEL F. MAGUIRE,
Individually and as Member of the Board of Directors, HRMC,
A.88
FRED L. MCFARLIN, Individually and Member of the Board
of Directors, HRMC, JOHN E. MILLER, Ph.D., Individually
and as Chairman, Executive Committee, HRMC, LYLE
SALTZMAN, M.D., Individually and as Member of the
Executive Committee, HRMC, VAL M. STEELE, Individually
and Member of the Board of Directors, HRMC, LYNN
STOLDT, R.N., Individually and Head Operating Nurse,
HRMC, RUSSELL P. SULLIVAN, JR., Individually and as
Chairman of the Board of Directors, HRMC, JOHN F.
TURNER, JR., Individually and First Vice Chairman of Board
of Directors; HRMC, RITA WHEELER, R.N., Individually
and as Operating Room Supervisor, HRMC,
Defendants.
On Appeal from the United States District Court for the
Middle District of Florida
ON PETITION(S) FOR REHEARING AND
SUGGESTION(S) OF REHEARING EN BANC
Before: TJOFLAT, Chief Judge, DUBINA, Circuit Judge and
DYER, Senior Circuit Judge.
PER CURIAM:
( X ) The Petition(s) for Rehearing are DENIED and no
member of this panel nor other Judge in regular active service
on the Court having requested that the Court be polled on
rehearing en banc (Rule 35, Federal Rules of Appellate
Procedure; Eleventh Circuit Rule 35-5), the Suggestion(s) of
Rehearing En Banc are DENIED.
a
A.89
( ) The Petition(s) for Rehearing are DENIED and the Court
having been polled at the request of one of the members of the
Court and a majority of the Circuit Judges who are in regular
active service not having voted in favor of it (rule 35), Federal
Rules of Appellate Procedure; Eleventh Circuit Rule 35-5), the
Suggestion(s) of Rehearing En Banc are also DENIED.
( ) A member of the Court in active service having
requested a poll on the reconsideration of this cause en banc,
and a majority of the judges in active service not having voted
in favor of it, Rehearing En Banc is DENIED.
ENTERED FOR THE COURT:
/S/ GERALD B. TJOFLAT
CHIEF JUDGE
A.90
United States District Court
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
FLOYD T. BRYAN and
FLOYD T. BRYAN, M.D., P.A.,
V. JUDGMENT IN A CIVIL CASE
JAMES E. HOLMES REGIONAL
MEDICAL CENTER, a/k/a
HOLMES REGIONAL MEDICAL
CENTER, INC. CASE NO: 90-896-Civ-Orl-18
XX Jury Verdict. This action came before the Court for
a trial by jury. The issues have been tried and the jury
has rendered its verdict.
Decision by Court. This action came to trial or
hearing before the Court. the issues have been tried or
heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED
that the plaintiff, FLOYD T. BRYAN, recover of the
defendant, JAMES E. HOLMES REGIONAL MEDICAL
CENTER, a/k/a HOLMES REGIONAL MEDICAL CENTER,
A.91
INC. the sum of $4,181,242.00 with interest thereon at the rate
of 4.26% as provided by law, and his costs of action.
that the plaintiff, FLOYD T. BRYAN, M_.D., P.A., take
nothing, that the action be dismissed on the merits.
APPROVED FOR ENTRY
/S/ G. KENDALL SHARP
G. KENDALL SHARP
United States District Judge
June 22, 1992 DAVID L. EDWARDS
Date Clerk
/S/ Darleen G. Darby
(By) Deputy Clerk
A.92
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
FLOYD T. BRYAN & FLOYD T. BRYAN, M.D., P.A.
Plaintiffs,
V. CASE NO. 90-0896-CIV-ORL-18
JAMES E. HOLMES REGIONAL MEDICAL
CENTER, etc., & OTHERS,
Defendants.
/
SPECIAL VERDICT FORM
l. Did Holmes Regional Medical Center permanently
terminate Dr. Bryan’s medical staff privileges in violation of
its by-laws?
Yes X No
If your answer to question | is no, go to question 4.
2 If your answer to question | is yes, did Holmes’s
conduct proximately cause any injury or damage to Plaintiffs?
Yes X No
A.93
3, If your answer to question 2 is yes, what is the amount
of any actual damages sustained by Plaintiffs as a proximate
result of Holmes’s conduct?
Floyd T. Bryan: $_ 4,181,242.
Floyd T. Bryan, M.D., P.A.: $ 0
4. Has Holmes violated state and federal antitrust laws?
Yes X No
If your answer to question 4 is no, date and sign the verdict.
2. If your answer to question 4 is yes, has Holmes’s
violation of the federal and state antitrust laws been a
proximate cause of any injury and/or damages, threatened or
actual, to Plaintiffs?
Floyd T. Bryan Yes _X No__
Floyd T. Bryan, M.D., P.A. Yee. No xX
SO SAY WE ALL this__17__ day of June, 1992.
/S/ LELA L. ABRAMS
FOREPERSON
A.94
MILLER - DIRECT - MOSS 535
of the situation at the time, they can’t control it. And if
they’re hollering and they’re screaming, they’re not normally
hollering at the nurse or the person in the room, it’s the
situation at that time that’s taking control.
Q. Have you ever in the period of time that you were a nurse
at the hospital at Holmes Regional Medical Center seen Dr.
Bryan do anything which in your opinion jeopardized the
safety of this patients?
A. Never.
Q. Have you ever seen him do anything which in your
opinion would justify his losing the right to practice o
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