Appendix — Bryan v. James E. Holmes Regional Medical Center

Supreme Court brief1995

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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

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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

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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

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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.

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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

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BRYAN v. JAMES E. HOLMES

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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

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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

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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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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

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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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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

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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

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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

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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

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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

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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

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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

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BRYAN v. JAMES E. HOLMES

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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

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BRYAN v. JAMES E. HOLMES

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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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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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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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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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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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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

A.56

"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

A.68

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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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

A.74

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

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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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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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