# Appendix — Bryan v. James E. Holmes Regional Medical Center > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1237%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1995 - **Citation:** 514 U.S. 1019 ## Text PIL&®D 941323 FrB 3 1995 GP Ace-o-zHe-CLeRk IN THE SUPREME COURT OF THE UNITED STATES October Term, 1994 FLOYD T. BRYAN, and FLOYD T. BRYAN, M.D., P.A., Petitioners, Vv. JAMES E. HOLMES REGIONAL MEDICAL CENTER, a/k/a HOLMES REGIONAL MEDICAL CENTER, INC., Respondent. APPENDIX TO PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT VOLUME I Jennifer S. Carroll Metzger, Sonneborn & Rutter, P.A. 1545 Centrepark Drive North West Palm Beach, Florida 33401-7414 (407) 684-2000 Counsel of Record — George H. Moss Moss, Henderson, Van Gaasbeck, Blanton & Koval Post Office Box 3406 Vero Beach, Florida 32964-3406 il INDEX TO APPENDIX VOLUME I Document Reference DOCUMENTS PURSUANT TO RULE 14.1(k)(i)-(iv) Opinion - (Bryan v. HRMC, Ce Be Se ee | A.1-52 May 20, 1992 Order on Summary Judgment, U.S. District Court, a A.53-73 August 27, 1992 Post-Trial Order, U.S. District Court, rr A.74-81 July 7, 1992 Motion for Judgment as a Matter of Law Pursuant to Rule 50(b), U.S. District Court, ar A.82-86 December 9, 1994 Order Denying Petition for Rehearing, Eleventh Circuit Court of Appeals ............ A.87-89 June 22, 1992 Judgment, U.S. District Court, ae A.90-91 June 17, 1992 Special Verdict Form, U.S. District Court, I oi yo ee ea bee ee A.92-93 ill INDEX TO APPENDIX Document Reference EXCERPTS FROM RECORD ON APPEAL Excerpts of Trial Transcripts GUD SIS SERED an te veveuaeeree eee A.94-95 Curriculum Vitae of Floyd Talmadge Bryan, M.D; Excerpt of Trial Transcripts (p.809); Excerpt of May 20, 1991 Deposition Transcript of Olivia Ayers, R.N. (pp.35-36); Excerpt of February 19, 1998 Executive Commnsiiee DEMIR, 2.0 6s6 bac din taken neues A.96-106 Excerpts of Trial Transcripts (OD.2 PEE“ P OR, EPEEE 4.46 vk AOS Pewee A.107-108 Special Verdict Form submitted by Defendant James E. Holmes Regional Medical Center regarding Health Care Quality Improvement Act ............... A.109 Excerpt of Trial Transcripts (PATON) | oo cies ba aed saa eee A.110 Brief of Amici Curiae filed by the American Medical Association and the Florida Medical Association ........... A.111-127 Excerpt of August 28, 1990 Chanda panel transcripts (p.159); Excerpt of Tria! Transcripts (pp. 1348,1463,1464, LIPPER MTEGE CR) oan 004 - See ee A.128-13 iv INDEX TO APPENDIX Document Reference Excerpts of Trial Transcripts (pp. 1820-1821,1467-1470, aches se ek ees aes eons A.136-145 Excerpt of Trial Transcripts (pp. 1167,1169,1171-1172); Excerpt of HRMC Product Line Report (pp.32-35) ... 6... ee eee eees A.146-150 Excerpts of May 20, 1991 Deposition Transcript of Olivia Ayers, R.N SE A.151-153 June 5, 1989 Executive Committee Minutes; Excerpt of August 28, 1990 Chanda Panel Hearing Transcripts (p.37); Excerpt of Trial Transcripts (pp.730-732) ......-.+e+e eee: A.154-159 October 9, 1989 Executive ES OE OTE A.160 October 19, 1989 Board letter; December 13, 1989 Letter to Board from Dr. Bryan; Excerpts of Trial Transcripts (pp.1120-1124) ....... cece eee eee eee A.161-171 \seienieaneee eal } Vv INDEX TO APPENDIX VOLUME II Document Reference Excerpts of Trial Transcripts (PP-OUZ,1356-198S7) woo. i ce cc cenck. A.172-174 Excerpt of May 20, 1991 Deposition Transcript of Olivia Ayers, R.N. ne. 4-5 oi, (oet ae ene A.175 Charts Comparing Number of Surgeries (General Surgery and General/Vascular Surgery, 1988-1991); Excerpts of Trial Transcripts (pp.1353-1355) ............... A.176-180 Excerpt of Trial Transcripts es oh oe ea i Se ee ee A.181 Excerpts of Trial Transcripts (POOR, TRIM) «oa ees cen... A.182-184 Excerpts of Trial Transcripts : (pp.800,2263-2266,2272-2274, ! 2278-2280,2293,2298-2300,2395, Se es eS ee A.185-202 Excerpt of May 20, 199] Deposition Transcript of Olivia Ayers, R.N. 8 eee hae A.203 Excerpts of Trial Transcripts (pp.1545,1637,1641-1642) ............... A.204-207 Vi INDEX TO APPENDIX Document Reference Excerpt of May 20, 1991 Deposition Transcript of Olivia Ayers, R.N. (p.69-70); Excerpt of May 28, 1992 Deposition Transcript of Dr. Bittar (p.19); Excerpt of August 29, 1990 Chanda Hearing FOROS TUGRRCTINNS GBS) 2 cnc cecerveseses A.208-211 Excerpt of May 20, 1991 Deposition Transcript of Olivia Ayers, R.N. (pp.47-48,50); Excerpt of August 29, 1990 Chanda Hearing Panel PE GE 0:5 9 ab on 09 ae week A.212-215 Excerpt of May 20, 1991 Deposition Transcript of Olivia Ayers, R.N. (pp.13-15,26,65); Excerpts of August 29, 1990 Chanda Hearing Panel Transcripts (pp.177-178); Excerpts of Trial Transcripts (pp. 522,533-534,537,775-777,778) ......... A.216-230 Excerpt of May 28, 1992 Deposition Transcript of Dr. Bittar (p.38); Excerpt of May 13, 1992 Deposition Transcript of Philip Levitt, M.D. (pp.24,27); Excerpt of May 20, 1991 Deposition Transcript of Olivia Ayers, R.N. (pp.12,65); Excerpt of Trial Transcripts (pp. 602-604,615-617, EINE cu. s-0s 0 9s oss oe es ee ee es A.231-244 . —EE Vii INDEX TO APPENDIX Document Reference Excerpts of Trial Transcripts (pp.930,810,670,933-934); Excerpt of May 13, 1992 Deposition Transcript of Philip Levitt, M.D. (Ww 4 by?) ee ee I ee ae A.245-251 Excerpt of May 28, 1992 Deposition Transcript of Dr. Bittar (p.21) ..--- +--+ series A.252 Excerpts of Trial Transcripts (pp.383-384) ..... cece reece eres rece: A.253-254 Excerpt (pp.4-5) of July 10, 1989 Executive Committee Minutes); Excerpt of August 27,1990 Chanda Hearing Panel transcripts (pp.10-12, 19-21); Excerpt of August 29, 1990 Chanda Hearing Panel Transcripts (OP. 2AB-BS1) 2c ccc ce wen sscesseesecss A.255-264 Excerpts of Trial Transcripts (pp.375,995,1102-1104,1106) ...--+-++-++->: A.265-270 May 29, 1990 Executive Committee Meeting Minutes ......---- eee rercres A.271-278 Excerpt of Bylaws of Holmes Regional Medical Center 9: See ee oe A.279 Excerpts of Trial Transcripts ae i Pere reer Tt Cer TEs. A.280 Vili INDEX TO APPENDIX Document Reference March 2, 1992 letter to Floyd T. Bryan, M.D. from Department of Professional Regulation .. 6... ccc cc ees A.281 Excerpt of Bylaws of Holmes Regional Co eS re er ee ie A.282 LEGISLATIVE HISTORY H.R.5540, 99th 132 Cong., 2d Sess., sent. 17, I9GG CPROMMNDEE) 2.6 cw ccc cc ccevewn A.283 H.R. No.99-903, 99th 132 Cong., 2d Sess., reprinted in 1986 a EE. Sos 6s a eae a ee eS A.284-305 Hearings on H.R. 5540 Before the Subcommitt. on Civil and Constitu- tional Rights of the House Committee of the Judiciary, 99th 132 Cong., 2d Sess. (Oct. 8 and 9, 1986), pp.66,77,86,90, TRAE oS Oe ee ee a A.306-319 Excerpts of 132 Cong. Rec. H9957 (daily ed. Oct. 14, 1986) (stebermemt Dy WOON) 6 6c kc cee ween A.320 Excerpts of 132 Cong. Rec. H9958 (daily ed. Oct. 14, 1986) (statement by Waxman) .................... A.321 iX SS ae INDEX TO APPENDIX Document Reference Excerpts of 132 Cong. Rec. H9959 { (daily ed. Oct. 14, 1986 (statement by Waxman) ......---+e-eeees A.322-324 Excerpts of 132 Cong. Rec. H9960 (daily ed. Oct. 14, 1986 (statement by Edwards) .....----+e+eeeee A.325-326 Excerpts of 132 Cong. Rec. H9961 (daily ed. Oct. 14, 1986 (statement by Edwards) ......--- +++ eeee: A.327-328 Excerpts of 132 Cong. Rec. H11589 (daily ed. Oct. 17, 1986) (statement by Waxman) .....---- +--+ +e: A.329-330 Excerpts of 132 Cong. Rec. H11590 (daily ed. Oct. 17, 1986) (statement by Waxman) .......---+++++s: A.331-332 Excerpts of 132 Cong. Rec. H11591 (daily ed. Oct. 17, 1986) (statement by Waxman) ......---- ee eee eee: A.332 OTHER STATUTES 42 U.S.C.A. § 11112(b), Health Care Quality Improvement Act ....... A.333-335 | A.1 BRYAN vy. JAMES E. HOLMES REGIONAL MEDICAL CENTER Floyd T. BRYAN; Floyd T. Bryan, M.D., P.A., Plaintiffs-Appellees, Cross-Appellants, V. JAMES E. HOLMES REGIONAL MEDICAL CENTER, a/k/a Holmes Regional Medical Center, Inc., Defendant- Appellant, Cross-Appellee, Raymond A. Armstrong, M.D., individually and as Chairman, Department of Surgery, HRMC and as Member of the Board of Directors, HRMC; Richard N. Baney, M.D., individually and as Member of the Board of Directors, HRMC; Michael J. Foley, M.D., individually and as Medical Director, HRMC; Michael V. Gatto, individually and as Member of the Board of Directors, HRMC; James E. Gray, III, individually and as Secretary of the Board of Directors, HRMC; Joseph A. Gurri, M.D., individually and as Chief of the Medical Staff, HRMC; Martin W. Isenman, M.D., individually and as Member of the Board of Directors, HRMC; David M. Jones, Maj. Gen. (Retired), individually and as Treasurer of the Board of Directors, HRMC; Michael F. Maguire, individually and as Member of the Board of Directors, HRMC; Fred L. McFarlin, individually and as Member of the Board of Directors, HRMC; John E. Miller, Ph.D., individually and as Second Vice Chairman of the Board of Directors, HRMC; Barry A. Mills, M.D., individually and as Chairman, Executive Committee, HRMC; Lyle Saltzman, M.D., individually and as Member of the Executive Committee, HRMC; Val M. Steele, individually and as Member of the Board of A.2 BRYAN v. JAMES E. HOLMES REGIONAL MEDICAL CENTER Directors, HRMC; Lynn Stoldt, R.N., individually and as Head Operating Room Nurse, HRMC; Russell P. Sullivan, Jr., individually and as Chairman of the Board of Directors, HRMC; John F. Turner, Jr., individually and as First Vice Chairman of Board of Directors, HRMC; Rita Wheeler, R.N., individually and as Operating Room Supervisor, HRMC, Defendants. No. 92-2963. United States Court of Appeals, Eleventh Circuit. Oct. 4, 1994. Physician brought action against hospital that terminated his staff privileges. The United States District Court for the Middle District of Florida, No. 90-896-ORL-18, G. Kendall Sharp, Jr., entered judgment in favor of physician, and hospital appealed. The Court of Appeals, Tjoflat, Chief Judge, held that hospital was immune from liability for monetary damages under Health Care Quality Improvement Act (HCQIA). Reversed. 1. Hospitals --6 HCQIA immunity is question of law for court to decide and may be resolved whenever record in particular case becomes sufficiently developed. Health Care Quality Im- provement Act of 1986, §§ 402-432, 42 U.S.C.A. §§ 11101- 11152. A.3 BRYAN v. JAMES E. HOLMES REGIONAL MEDICAL CENTER 2. Hospitals --6 Congress intended HCQIA to permit defendants in suits arising out of peer review disciplinary decisions to file motions to resolve issues concerning immunity from monetary liability as early as possible in litigation process. Health Care Quality Improvement Act of 1986, §§ 402432, 42 U.S.C.A. §§ 11101- 11152. 3. Federal Civil Procedure --2554 Hospitals --6 Although immunity under HCQIA may be determined at summary judgment stage, resolution of that issue may be deferred until or after trial if standards of summary judgment rule cannot be satisfied; substantive standards under HCQIA remain the same regardless of point at which immunity determination occurs. Fed. Rules Civ. Proc. Rule 56, 28 U.S.C.A.; Health Care Quality Improvement Act of 1986, §§ 402-432, 42 U.S.C.A. §§ 11101-11152. 4. Federal Civil Procedure --2554 District court should consider issue of HCQIA immunity from damages at summary judgment stage; if it determines that defendant is not entitled to such protection, then merits of case should be submitted to jury without reference to immunity issue. Fed. Rules Civ.Proc.Rule 56, 28 U.S.C.A.; Health Care Quality Improvement Act of 1986, §§ 402-432, 42 U.S.C.A. §§ 11101-11152. A.4 BRYAN v. JAMES E. HOLMES REGIONAL MEDICAL CENTER 5. Federal Civil Procedure --2214 Hospitals --6 If there are disputed subsidiary issues of fact concerning HCQIA immunity, such as whether disciplined physician was given adequate notices of charges and appropriate opportunity to be heard, court may ask jury to resolve subsidiary factual questions by responding to special interrogatories; under no circumstances should ultimate question of whether defendant is immune from monetary liability under HCQIA be submitted to jury. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A.; Health Care Quality Improvement Act of 1986, §§ 402-432, 42 U.S.C.A. §§ 11101-11152. 6. Federal Civil Procedure --2546 In ruling on motion for summary judgment on issue of hospital’s immunity from liability under HCQIA, court’s inquiry focuses on whether physician provided sufficient evidence to permit jury to find that physician had overcome, by preponderance of the evidence, presumption that hospital would reasonably have believed that it had met standards of immunity provision. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A.; Health Care Quality Improvement Act of 1986, § 412(a), 42 U.S.C.A. § 11112(a). 7. Hospitals --6 If jury returns verdict awarding damages to disciplined physician but evidence at trial conclusively demonstrates that defendant has satisfied HCQIA standards for peer review oe ad ram at anil Care q 4 i j } ¢ 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. A.14 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. A.16 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. A.17 BRYAN v. JAMES E. HOLMES REGIONAL MEDICAL CENTER The Holmes board of directors promulgates bylaws for the medical staff, by which all physicians receiving staff privileges at the Hospital agree to be bound. The bylaws provide a detailed series of procedures for handling physician disciplinary actions. Under those bylaws, the medical staff, through its executive committee, may recommend that the board of directors suspend or revoke the privileges of a physician". Although the board retains the ultimate authority over staff privileges, the recommendations of the medical staff are given considerable weight. This system, which is known as peer review, is designed to raise the quality of medical care by encouraging physicians to police themselves. Florida law mandates that hospitals provide for peer review of their staff doctors.° Under the Holmes bylaws, certain hospital officials may request an executive committee investigation’ into a physician’s conduct if the medical staff member fails to comply with the ethics of the medical profession or with the Hospital’s bylaws, or if "the Staff appointee is unable to work harmoniously with others to the extent that it affects the orderly operation of the hospital or Medical Staff * See Fla.Stat.Ann. § 395.0193(2) (West 1993) ("Each licensed [health care} facility, as a condition of licensure, shall provide for peer review of physicians who deliver health care services at the facility."). ” Investigations may be requested, according to the bylaws, by various officers of the medical staff, including the chairpersons of various com- mittees and clinical departments. Such requests must be made in writing to the executive committee and must refer to the specific conduct that constitutes the basis for the request. A.18 BRYAN v. JAMES E. HOLMES REGIONAL MEDICAL CENTER organization." Grounds for investigation also include questions regarding a physician’s clinical competence or his care and treatment of patients. Once an investigation is initiated, the executive committee is charged with making a recommendation to the board of directors concerning the level of discipline that should be imposed.’ The executive committee’s recommendation may range from a written warning to revocation of clinical privileges, but a recommendation involving the reduction, suspension, or revocation of clinical privileges entitles the physician to the extensive procedural hearing rights outlined in the bylaws. The executive committee’s recommendation is forwarded to the CEO of the hospital, who notifies the physician under scrutiny. The physician has twenty days from receipt of the notice to make a written request for a hearing. If the physician waives his or her right to a hearing, the CEO forwards the recommendation (along with the supporting documentation) to the board of directors for a final disposition * All or part of the physician’s privileges may be suspended temporarily pending the outcome of the inquiry. The relevant provision of the bylaws provides: At any time during the investigation, the Executive Committee or the Medical Staff President or his designee may suspend all or any part of the clinical privileges of the individual being investigated. This suspension shall be deemed to be administrative in nature, for the protection of hospital patients. It shall be in effect during the investigation only, shall not indicate the truth of the charges, and shall remain in force, without appeal, during the course of the investigation. A.19 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. A.20 BRYAN v. JAMES E. HOLMES REGIONAL MEDICAL CENTER to the hearing and to examine witnesses. In addition, the CEO appoints a hearing officer, who must be an attorney, to preside over the hearing and to rule on the admissibility of evidence; the hearing officer must not act as a prosecuting officer or as an advocate for the hospital. The bylaws recognize that all members of the hearing panel, as practicing physicians, cannot be present for all panel sessions and expressly provide that their absence will not disqualify them or invalidate the hearing. The decision of the hearing panel is to be based on the evidence produced at the hearing, whether in the form of oral testimony of witnesses or documentary evidence. The bylaws specifically provide that the evidence may include "any material contained in the hospital’s files regarding the [complained-against physician] who requested the hearing so long as this material has been admitted into evidence at the hearing and the [physician] who requested the hearing had the opportunity to comment on and, by other evidence, refute it." The "burden of proof" is established as follows: "[T]he Hearing Panel shall recommend against the [physician] who requested the hearing unless it finds that said [physician] has proved that the recommendation which prompted the hearing was unreasonable, not sustained by the evidence, or otherwise unfounded." After reaching a decision, the hearing panel is to "render a recommendation, accompanied by a report, which shall contain a concise statement of the reasons justifying the recommendation made....". The report is then forwarded to the executive committee for whatever modification, if any, it may wish to make in its original recommendation. The executive committee’s decision on modification is purely discretionary. A.21 BRYAN v. JAMES E. HOLMES REGIONAL MEDICAL CENTER Within fifteen days after the affected physician is notified of final adverse action by the executive committee, the doctor may make a written request for appellate review by the board of directors. If appellate review is not requested within the fifteen-day period, the affected individual is deemed to have accepted the recommendation involved "and it shall thereupon become final and immediately effective." The terms of the bylaws limit the grounds upon which an adverse disciplinary recommendation may be appealed to the following: [1] there was substantial failure on the part of the Executive Committee or Hearing Panel to comply with the hospital or Medical Staff Bylaws in the conduct of hearings and recommendations based upon hearings so as to deny due process or a fair hearing, or [2] the recommendation was made arbitrarily, capriciously, or with prejudice; or [3] the recommendation of the Executive Committee or Hearing Panel was not supported by the evidence. Under time constraints imposed by the bylaws, the chairman of the board appoints a board review panel (consisting of three ‘Or more persons, including board members or "reputable persons outside the hospital") to consider the record upon which the disciplinary recommendation was made. The review panel may accept additional evidence, subject to the same procedural guarantees that apply to hearing panels, and both sides have an opportunity to present arguments. The review A.22 BRYAN v. JAMES E. HOLMES REGIONAL MEDICAL CENTER panel then recommends action to the full board." The board of directors may affirm, modify, or reverse the recommendations of either the appellate review panel or the executive committee, or, in its discretion, refer the matter for further review and, recommendation.'' When made, the board’s ultimate decision is final, immediately effective, and is not subject to further review under the bylaws. B. Bryan’s disciplinary problems began shortly after he arrived at Holmes in 1976, and they continued throughout his tenure at the Hospital. Indeed, prior to his termination, Bryan was the subject of more than fifty written incident reports involving unprofessional or disruptive behavior, usually complaints regarding Bryan’s abusive treatment of nurses, technicians, and even fellow physicians.’ By December 1987, nurses in the '® If the board’s review panel recommends action to the board that is contrary to the recommendation of the medical staff, and if a physician’s privileges are at Issue, then the matter is first reviewed by a joint conference committee, comprised of members of the board and the medical staff, before the board makes a final decision. '' The medical staff bylaw that contains this provision does not indicate to whom the board may "refer the matter for further review." ' Some insight into the origins of this behavior came from Bryan himself during his testimony at trial. Shortly after completing his residency, Bryan obtained staff privileges at a Veterans Administration hospital in Miami. There, he explained, he soon learned that the hospital could not fire incompetent nurses and other technicians easily; the most A.23 BRYAN v. JAMES E. HOLMES REGIONAL MEDICAL CENTER intensive care unit at Holmes were refusing to care for Bryan’s patients on anything but a rotating basis for fear of becoming the object of his volcanic temper. For their part, surgical nurses complained that Bryan’s verbal abuse compounded an already stressful environment, precluding them from operating at peak performance. At trial in this case, numerous employees who had either witnessed or suffered his outbursts described Bryan’s temperament; he was characterized as being "brutal" and sharp" with subordinates, as engendering fear in the nursing staff, and as promoting a tense working atmosphere. Bryan admitted both during the Holmes disciplinary process and at trial in federal court that he had a problem with his temper and that his behavior had, at times, been "disruptive" and "un- professional." He also conceded that the incident reports describing his behavior were not fabrications. At first, the Hospital and the medical staff attempted to deal with Bryan’s behavior informally. Bryan’s conduct was the subject of periodic meetings and counseling by the executive committee, the chief of the medical staff, and even the CEO of the hospital. The Hospital repeatedly warned Bryan that his confrontations with staff members could not be tolerated and insisted that he correct his disruptive behavior. In 1985, Bryan agreed to take a voluntary leave of absence and to seek counseling, first with his priest and then with a psychiatrist (who prescribed a number of medications) to control his effective way to avoid working with nurses he viewed as incompetent or inefficient, he discovered, was to insult them until they refused to participate in operations involving his patients. A.24 BRYAN v. JAMES E. HOLMES REGIONAL MEDICAL CENTER temper. The incidents continued unabated, however, over the next three years, and Hospital officials gradually began to take a more active approach in dealing with the problem. In August 1987, a group of three Holmes officials--the Hospital’s CEO, the chief of the medical staff, and the chairman of the de- partment of surgery--advised Bryan that he would be brought before the executive committee for consideration of formal disciplinary action if further incidents occurred. Following additional incident reports detailing a continued behavioral pattern, the executive committee appointed an ad hoc committee "to investigate Dr. Bryan’s long term pattern of behavior and look into rehabilitative possibilities and make a recommendation to the Executive Committee." In March, the ad hoc committee recommended that any future problems be the subject of graduated suspensions, beginning with a one- week suspension for the next significant incident. The execu- tive committee agreed to this proposal and informed Bryan in writing of its decision that any further incidents would result in disciplinary action of increasing severity. According to the minutes from the executive committee’s March 14, 1988, meeting, "[tlhe Committee felt that such specific guidelines would be an appropriate mechanism to help Dr. Bryan improve his behavior." Bryan did not contest this action. In April 1988, Just one month after the executive committee’s warning concerning graduated discipline, Bryan had an angry exchange with two anesthesiologists when an operation began three minutes behind schedule. When the anesthesiologists attempted to explain why they were taking a few minutes to reexamine the patient’s medical records before A.25 BRYAN v. JAMES E. HOLMES REGIONAL MEDICAL CENTER administering the anesthesia to the patient on the operating table, Bryan told them that he "didn’t give a damn about incompetent people’s excuses." According to _ the anesthesiologists, he then launched into a tirade of insults in loud and angry tones in front of the still-conscious patient. The executive committee recommended a one-week suspen- sion as a result of the incident with the anesthesiologists; Bryan again accepted the punishment without objection. Yet Bryan’s problems with his colleagues continued. In October 1988, for example, Bryan falsely reported to a nurse supervisor that one of her patients had just hanged himself in his room; in fact, the patient was fine. At trial, Bryan explained that he had intended the episode as a "joke" to teach the nurse "responsibility." After additional incidents during the fail of 1988, the executive committee met to consider disciplinary ac- tion. Bryan was invited to this meeting, but he did not appear because, due to a miscommunication, he was waiting in his office to be called. The executive committee reviewed the recent incident reports and, concluding that they included at least two new significant episodes, recommended a four-week suspension. ° At this point, Bryan for the first time invoked his procedural rights under the bylaws, requesting that a peer review hearing panel evaluate the executive committee’s recommendation. Bryan was represented by counsel at the proceedings, over which Dr. Dale Ryon presided. The Ryon panel concluded '- Under the bylaws, Bryan’s presence was not required at this stage of the proceedings. A.26 BRYAN v. JAMES E. HOLMES REGIONAL MEDICAL CENTER that Bryan had in fact done the things alleged and that Bryan’s actions were inappropriate. Nevertheless, it recommended that no suspension be imposed. In its report, the panel expressed concern that the subcommittee monitoring Bryan’s behavior had not discussed the incident reports with Bryan before making a recommendation to the executive committee, and that the executive committee had recommended a four-week suspension without hearing from Bryan (as a result of the misunderstanding about the meeting). Further, the Ryon panel suggested that the Hospital’s incident report system as a whole was flawed because a report might be filed without the affected individual having a contemporaneous opportunity to respond."* After receiving the Ryon panel’s report, the executive committee modified its original disciplinary recommendation, reducing the suggested suspension from four weeks to two. Bryan appealed the executive committee’s recommendation to the board of directors, which decided that no suspension would be imposed. On October 19, 1989, however, the board advised Bryan by letter that his abusive behavior could no longer be tolerated and that any further incidents of unprofessional behavior would result in the permanent revocation of his staff privileges. Bryan acknowledged the board’s conditions by signing this "ultimatum" letter on December 19, 1989. Above his signature, however, Bryan referred the board to his letter of December 13, in which he disputed that his behavior was disruptive and stated that, by signing the board’s letter, he was '* In response to this criticism, the incident report system at Holmes was changed to ensure that copies of all incident reports would be provided to the subject soon after they were filed. A.27 BRYAN v. JAMES E. HOLMES REGIONAL MEDICAL CENTER not waiving his "rights to due process of law or other civil tights as a medical staff member and American citizen." Despite the board’s warning, Bryan was involved in four additional incidents in the first five months of 1990; these four incidents led directly to the termination of Bryan’s medical staff privileges. First, surgical technologist Tina Stark filed an incident report stating that, on March 7, Bryan slapped her hands--apparently as a reprimand for a perceived mistake in handling a catheter--while she was assisting him in an operation. On April 9 and 16, 1990, the executive committee held meetings concerning the Stark incident and interviewed the various nurses and physicians who witnessed the events. Given Bryan’s past pattern of conduct, the executive committee recommended that Bryan’s privileges be suspended for two weeks. Bryan requested a peer review hearing. Before a hearing panel could be appointed, however, Bryan was involved in a second physical incident. On May 16, 1990, while nurse Michael Greene assisted Bryan on an operation, Bryan struck Greene’s hands with a surgical instrument; Greene claimed that his hand hurt for several minutes afterwards. During the same period, Bryan twice ordered the wrong patient prepared for surgery, first in March of 1990 and then in May. On both occasions, the mistake was caught by another physician after the patient had been transferred to the surgical intensive care unit in advance of the operation. On May 29, 1990, the executive committee convened to A.28 BRYAN v. JAMES E. HOLMES REGIONAL MEDICAL CENTER interview the witnesses to the four recent incidents.'* Bryan presented his version of events to the committee: He at- tributed what were perceived as slaps to the hands of the nurses as a form of "nonverbal communication" (the use of hand motions by a physician to give directions during surgery) to correct the nurses’ mistakes; similarly, although he admitted the misdirections of the patients for surgery, he minimized these mistakes because they were detected in time and no harm had come to the individuals involved. After considering these latest incidents in light of Bryan’s history of disruptive behavior and the hospital’s varied attempts to correct such behavior--as well as the board’s explicit warning a few months before that further unprofessional conduct would result in Bryan’s dismissal--the executive committee recommended that Bryan’s staff privileges be permanently revoked. Once again, Bryan requested that a peer review hearing panel be appointed. Chaired by Dr. Joseph Chanda, the panel consisted of seven physicians, none of whom were vascular surgeons.'° The Chanda panel held four sessions of hearings; 'S By letter dated May 18, 1990, Dr. Barry Mills, the chief of the medical staff, suspended Bryan’s clinical privileges pending an investigation into these matters. This suspension was considered administrative in nature; under the bylaws, Bryan was allowed *o continue to care for patients already admitted to the Hospital, but he couid not admit any additional patients. ‘* The hearing panel members were appointed by Dr. Mills with the approval of the executive committee. Bryan challenged the initial compo- sition of the panel, alleging bias on the part of Dr. William Broussard, who advised Bryan to seek counseling for his interpersonal problems in 1982. Bryan also contended that the panel should be composed solely of Bran Se ew Eo rbneen hide! eine aaa ad Cae a ine a iat SRL esate Re eA Oa aS Tes GALA GAEL Sed an, 4 5 PS 5 x * ‘3 7 4 A PY 3 $ < a= 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 A.30 BRYAN v. JAMES E. HOLMES REGIONAL MEDICAL CENTER Much of Bryan’s defense was focused on a disparate treatment argument. Bryan contended that he had been written up for minor incidents that would have been ignored had they involved any other doctor on the Holmes staff. Bryan also argued that his temper was not disruptive, and that many other physicians at the Hospital had similar or worse temper problems. He further suggested that the disciplinary action was motivated principally by personal animosity on the part of hospital administrators and executive committee members. After considering the evidence presented, the Chanda panel unanimously found that the most recent incidents, which prompted the executive committee’s investigation and disci- plinary recommendation, "were amply supported by the record" and violated the admonitions in the board’s October 19, 1989, "warning" letter. The panel also concluded that Bryan had demonstrated a pattern of disruptive behavior extending over many years. Because "the hospital behavior of [Bryan was] below acceptable standards and adversely impact[ed] upon patient care and adversely affect{[ed] Hospital Staff's ability to deliver quality patient care," the panel rec- his panel had considered; Bryan attempted to elicit testimony that there was no pattern of inappropriate conduct by Bryan. Because Bryan had brought the earlier incident reports into issue, the Chanda panel asked the hearing officer sua sponte to review the reports, which he allowed at the last session of the hearings. Although Bryan complained that the reports should not be reviewed at that late stage of the proceedings, he did not formally object, assert a violation of the Hospital’s bylaws, or ask to reopen the hearing to present evidence in rebuttal. Several Holmes officials who testified at trial agreed that Bryan could have requested a postponement to prepare a response if he was concerned about these last- minute developments. A.31 BRYAN v. JAMES E. HOLMES REGIONAL MEDICAL CENTER ommended that Bryan’s clinical privileges be suspended for two years. After considering the Chanda panel’s report, the executive committee stood by its recommendation that Bryan’s staff privileges be revoked. Bryan appealed the executive committee’s recommendation to the board of the directors; pursuant to the bylaws, the board appointed a board review panel, which also recommended revocation of Bryan’s clinical privileges. The full board then considered the three recommendations--the report of the executive committee recommending termination of Bryan’s clinical privileges, the report of the Chanda panel recommending that Bryan be suspended for two years, and the report of the board’s own review panel recommending termination.'* In November 1990, the board unanimously voted to terminate Bryan’s clinical privileges at Holmes. Members of the executive committee and the board who testified at trial agreed that the '* Bryan has repeatedly emphasized that the board members did not themselves read the complete transcript of the Chanda panel proceedings before reaching the decision to terminate Bryan’s privileges. Bryan, however, had the opportunity to obtain a copy of the transcript of the hearings so that he could refer to specific portions in presenting his appeal to the board; he did not do so. Nor does the record indicate that he claimed at the time that the bylaws required the board to obtain the transcript before taking action concerning his staff privileges. Moreover, the text of the relevant medical staff bylaw provision states only that "(tlhe Hearing Panel shall maintain a record of the hearing by a reporter present to make a record of the hearing or a recording of the proceedings. The cost of such a reporter shall be borne by the hospital." A transcript of the first day of the Chanda panel hearings was prepared at Bryan’s request and was available for the board’s consideration. A.32 BRYAN v. JAMES E. HOLMES REGIONAL MEDICAL CENTER disciplinary action was taken after a reasonable effort to obtain the facts and in the reasonable belief that the severe sanction was imposed on Bryan in furtherance of quality patient care at Holmes. Throughout the disciplinary process, neither Bryan nor the expert witnesses who testified on his behalf contended that the various incident reports that formed the basis for the disciplinary action were fraudulent fabrications. Indeed, Bryan himself admitted that, in each instance, some sort of interaction occurred between himself and the author of the incident report. Bryan merely disagreed both with the Hospital’s judgment concerning the propriety of his conduct and the severity of the sanction imposed. ‘. On December 5, 1990, in the United States District Court for the Middle District of Florida, Bryan filed a complaint on behalf of himself and his professional association against the Hospital, the individual members of its board of directors, members of the medical staff executive committee, and two nurses. The complaint included federal and state antitrust claims as well as state law claims for defamation, negligent supervision of the peer review process (against only the individual members of the board of directors), and breach of contract for failing to follow the medical staff bylaws during the disciplinary process (against the Hospital).'!? The '* The complaint also included the following various ancillary claims: (1) constitutional and civil rights claims under 42 U.S.C. § 1983 (1988); (2) federal contractual claims arising out of the Hospital’s participation in Sek sale) WAR eel a Re Taide OREO eI tS ERB a ne BRS lo a Naa La SIE ns Ne cs ew A.33 BRYAN v. JAMES E. HOLMES REGIONAL MEDICAL CENTER complaint demanded damages and, only with respect to the count of negligent supervision, injunctive relief. The central allegation in the complaint was that the defendants, "individually and in concert, acted in bad faith and with intentional fraud, resulting in the destruction of Dr. Bryan’s medical practice." Beginning with their answer denying liability on all counts, the Hospital and the other defendants consistently claimed immunity from monetary liability for their actions in terminating Bryan’s clinical privileges because they were functioning in this matter, individually and collectively, as a professional review body in a peer review process. Later, the defendants filed motions for summary judgment, contending, inter alia that they were immune from Bryan’s suit for damages under HCQIA, 42 U.S.C. § 11111(a), and under Florida law, Fla.Stat.Ann. § 395.0193(5).”° the Medicare program; and (3) claims of "interference with prospective economic advantage" and intentional infliction of emotional distress. These causes of action did not figure prominently in the litigation of this case, and the court disposed of these claims either on summary judgment or by granting a directed verdict in favor of the defendants. Because these claims are not before us on appeal, we do not discuss them further in this opinion. ** For the text of the relevant HCQIA provisions, see supra part I. The Florida statute requiring that hospitals institute peer review procedures also provides legal protection to participants. The Florida law provides: There shal! be no monetary liability on the part of, and no cause of action for damages against, any licensed facility, its governing board or governing board members, peer review panel, medical staff, or _ disciplinary body, or its agents, investigators, witnesses, employees, or any other person for any action taken without intentional fraud in A.34 BRYAN v. JAMES E. HOLMES REGIONAL MEDICAL CENTER In disposing of the defendants’ motions, the district court made the following rulings. First, material issues of fact remained concerning whether the applicable standards for peer review actions had been met; therefore, a jury would have to decide the question of immunity. Second, Bryan lacked standing to pursue antitrust claims for damages under either Florida antitrust law or section 4 of the Clayton Act, 15 U.S.C. § 15(a) (1988),”' but Bryan could assert a claim for injunctive relief under sections 1 and 2 of the Sherman Act, Jd. §§ 1, 2 (Supp. IV 1993). The factual issues underpinning Bryan’s eligibility for injunctive relief would be submitted to the jury, acting in an advisory role. Third, the record did not support Bryan’s negligent supervision claim against the individual members of the board of directors. In sum, the following claims remained for trial: the state law damages claims for breach of contract and defamation, as well as the section | and 2 Sherman Act claims as to which the jury’s verdict would be advisory. carrying out the provisions of this section. Fla.Stat.Ann. § 395.0193(5). *! This circuit applies a two-pronged test of antitrust standing: The court must first determine that the plaintiff has suffered "‘antitrust injury and then decide whether the plaintiff is "an efficient enforcer of the antitrust laws." Todorov v. DCH Healthcare Auth., 921 F.2d 1438, 1449 (11th Cir.1991). The district court held that Bryan had failed to demonstrate that he was an efficient antitrust enforcer. o” A.35 BRYAN v. JAMES E. HOLMES REGIONAL MEDICAL CENTER This case was tried before a jury in June 1992.” At the close of Bryan’s case, the district court directed a verdict in favor of all of the individual defendants on the various counts against them because the evidence was insufficient to support liability. The court concluded, however, that the evidence - supported Bryan’s claims for breach of contract against the Hospital, and denied the Hospital’s motion for a directed verdict because material issues of fact remained concerning the federal and state peer review immunity statutes. The court also found that the evidence supported Bryan’s antitrust claims against the Hospital and accordingly submitted those claims to the jury. While the court’s oral jury instructions recited some of the language from the immunity statutes, the court did not explain to the jury that the immunity provisions created a threshold question concerning whether Bryan was entitled to damages at 2. At trial, as before the Chanda panel, Bryan presented testimony from various expert witnesses explaining that Bryan’s actions were proper and did not adversely affect patient care; nothing in the record, they testified, would justify the revocation of Bryan’s clinical privileges. This testimony was discounted by the Chanda panel. The experts themselves acknowledged at trial that a pattern of disruptive behavior could become so severe that disciplinary action would be required; on cross-examination, the experts also admitted that they had not examined all of the information considered by the Chanda panel. The Hospital also countered with expert testimony explaining why termination of Bryan’s privileges was consistent with sound hospital administration. Bryan also presented the testimony of witnesses who found fault with the Hospital’s peer review procedures, particularly that a transcript of the Chanda panel hearings was not prepared for the board’s use and that the Chanda hearing officer had become too inquisitorial in his questioning. A.36 BRYAN v. JAMES E. HOLMES REGIONAL MEDICAL CENTER all. Moreover, despite requests by counsel for Holmes, the special verdict form did not include any reference to the federal and state peer review immunity statutes.’ Regarding the breach of contract claim, the special verdict form simply asked the jury to answer this question: "Did Holmes Regional Medical Center permanently terminate Dr. Bryan’s medical staff privileges in violation of its bylaws?" If the jury answered "Yes," the verdict form then directed it to quantify the damages sustained by Bryan as a proximate result of the Hospital’s conduct. Similarly, regarding the antitrust claim, the verdict form only asked the jury "[h]as Holmes violated state and federal antitrust laws?" The jury returned affirmative answers to the verdict form interrogatories regarding whether the Hospital had terminated Bryan in violation of the bylaws and whether this breach proximately caused damages to Bryan; and awarded Bryan $4,181,242 in damages for these violations. The jury also found that the Hospital had violated state and federal antitrust laws, thereby causing harm to Bryan; but the district court denied Bryan’s post-trial request for injunctive relief under the antitrust laws, concluding that Bryan’s remedy at law was * The following colloquy occurred during the brief charge conference after the court informed counsel of its intended instructions: [COUNSEL FOR HOLMES]: [T]he special verdict as read does not include any of the immunity issues. Based on your decision on the directed verdict you’ve left the decision to the jury and we would respectfully request that the jury be instructed on the immunities. THE COURT: I think that would be confusing to the jury, that’s why I left them out. Of course, you can use that in your argument. A.37 BRYAN v. JAMES E. HOLMES REGIONAL MEDICAL CENTER adequate. The Hospital appeals from the district court’s judgment awarding Bryan damages for the termination of his medical staff privileges. Holmes first contends that the district court erred in failing to grant its motion for judgment on the state law damages claim based on immunity from liability under both state and federal laws governing the peer review process. In the alternative, the Hospital argues that a new trial is required because the trial court gave erroneous jury instructions and used an improper special verdict form. Bryan cross-appeals from the portion of the district courts summary judgment order denying the plaintiffs standing to seek damages under federal antitrust law. ITI. A. [1-3] HCQIA immunity is a question of law for the court to decide and may be resolved whenever the record in a particular case becomes sufficiently developed.“* Congress *4- As the House Committee explained: The provisions would allow a court to make a determination that the defendant has or has not met the standards specified in section [11112(a)]. The Committee intends that the court could so rule even though other issues in the case remain to be resolved. For example, a court might determine at an early stage of litigation that the defendant has met the [section 11112(a)] standards, even though the plaintiff might be able to demonstrate that the professional review action was otherwise improper. At that point, it would be in order for the court to rule on A.38 BRYAN +, JAMES E. HOLMES REGIONAL MEDICAL CENTER clearly intended HCQIA to permit defendants in suits arising out of peer review disciplinary decisions to file motions to re- solve the issues concerning immunity from monetary liability as early as possible in the litigation process.7*> As the House Committee explained, "these provisions allow defendants to file motions to resolve the issue of immunity in as expeditious a manner as possible." H.R.Rep. No. 903, at 12, reprinted in 1986 U.S.C.C.A.N. at 6394. Several courts have resolved the issue of HCQIA immunity from damages liability on summary judgment. See, e.g., Harris v. Bellin Memorial Hosp., 13 F.3d 1082, 1083 (7th Cir.1994); Austin, 979 F.2d at 734-35; Islami v. Covenant Medical Center, Inc., 822 F.Supp. 1361, 1376-77 (N.D.lowa 1992). Of course, although immunity may be determined at the summary judgment stage, resolution of that issue may be deferred until or after trial if the standards of Rule 56 cannot be satisfied. The substantive standards under immunity. In such a case, the court could still proceed to determine whether injunctive, declaratory, or other relief would be in order. H.R.Rep. No. 903, at 12, reprinted in 1996 U.S.C.C.A.N. at 6394; see also Austin, 979 F.2d at 734 & n. 5. ** The American Medical Association, appearing as amicus curiae in the case, urged this position on the court: Under the HCQIA, the vast majority of lawsuits challenging peer review proceedings should be dismissed at the summary judgment stage. Suits against peer reviewers should be allowed to go forward only when the plaintiff has rebutted the presumption that the peer review proceeding was reasonable and fair. Any lesser standard would deter physicians from serving as peer reviewers and would therefore undermine the purpose of the HCQIA. A.39 BRYAN v. JAMES E. HOLMES REGIONAL MEDICAL CENTER HCQIA, remain the same regardless of the point at which the immunity determination occurs. [4, 5] In civil rights cases brought under 42 U.S.C. § 1983 (1988), we have held that qualified immunity should not become a part of the jury instruction once the affirmative defense has been denied on a motion for summary judgment; the defense of qualified immunity should be decided by the court and should not be submitted for decision by the jury.” We conclude that the same procedure should be followed when considering a defendant’s immunity from damages liability under HCQIA. A district court should consider the issue of HCQIA immunity from damages at the summary judgment stage. If it determines that the defendant is not entitled to such ** The qualified immunity analysis in suits against government officials under 42 U.S.C. § 1983 provides a useful comparison. Although qualified immunity for government officials is a broader protection than that provided to peer review participants under HCQIA, the proper treatment of the two protections is substantially similar. In qualified immunity cases, the favored approach is to have the immunity determination made by the court, prior to trial, whenever possi- ble. See Mitchell v. Forsyth, 472 U.S. 511, 526, 103 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985) (recognizing, of course, that qualified immunity is "an immunity from suit rather than a mere defense to liability [that] is effectively lost if a case is erroneously permitted to go to trial"). When the issue cannot be resolved on summary judgment, we have held that "a jury should seldom, if ever, be instructed on qualified immunity; the availability of a qualified immunity defense is a question of law for the court to deter- mine." Ansley v. Heinrich, 925 F.2d 1339, 1341 (11th Cir.1991). Accordingly, "[a]lthough the district court preferably makes this determina- tion before trial, qualified immunity is a legal determination that must be made by the court and may be made either before trial, during trial, or after trial." Stone v. Peacock, 968 F.2d 1163, 1165 (11th Cir.1992). A.40 BRYAN v. JAMES E. HOLMES REGIONAL MEDICAL CENTER protection, then the merits of the case should be submitted to the jury without reference to the immunity issue. If there are disputed subsidiary issues of fact concerning HCQIA immunity, such as whether the disciplined physician was given adequate notice of the charges and the appropriate opportunity to be heard, the court may ask the jury to resolve the subsidiary factual questions by responding to special interroga- tories. Cf Stone, 968 P.2d at 1166 (similar framework for section 1983 qualified immunity cases); see also Islami 822 F.Supp. at 1378 (following Stone framework in HCQIA case). Under no circumstances should the ultimate question of whether the defendant is immune from monetary liability under HCQIA be submitted to the jury. In this case, we review the district court’s denial of the Hospital’s motion for judgment as a matter of law under Rule 50(b) of the Federal Rules of Civil Procedure.*? Like the district court in ruling on the motion for judgment, we view all of the evidence in the light most to the non-moving party. It is well established that "[j]udgment as a matter of law after the verdict may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment." 5A Moore’s Federal Practice § 50.07[2] (1994). Accordingly, "we must inde- pendently determine whether the facts and inferences point so ”. The Hospital had moved for judgment as a matter of law (for a directed verdict) under Rule 50(a) at the close of Bryan’s case and again at the close of ail the evidence. The court denied both motions, rejecting the Hospital’s assertion of immunity from monetary liability under the federal and state statutes. The issue, therefore, was properly preserved for a post-trial motion for judgment. A.41 BRYAN v. JAMES E. HOLMES REGIONAL MEDICAL CENTER overwhelmingly in favor of the movant . . . that reasonable people could not arrive at a contrary verdict." Roboserve, Ltd. v. Tom’s Foods, Inc., 940 F.2d 1441, 1448 (11th Cir.1991). Moreover, "[t]he moving party is entitled to a [judgment as a matter of law] if the nonmoving party failed to make a showing on an essential element of his case with respect to which he had the burden of proof." Smith v. United States, 894 F.2d 1549, 1552 (11th Cir.1990) (citing Cetotex Corp. v. Catrett, 477 U.S. 317, 322-28, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)). [6] As the Ninth Circuit has explained, the rebuttable presumption of HCQIA section 11112(a) creates an unusual summary judgment standard that can best be expressed as follows: "Might a reasonable jury, viewing the facts in the best light for [the plaintiff], conclude that he has shown, by a preponderance of the evidence, that the defendants’ actions are outside the scope of § 11112(a)?"** Austin, 979 F.2d at 734. If not, the court should grant the defendant’s motion. In a sense, the presumption language in HCQIA means that the plaintiff bears the burden of proving that the peer review process was not reasonable. Of course, motions for summary judgment under Rule 56 bear a close relationship to motions for judgment as a matter of law under Rule 50. Courts frequently apply the same standards when ruling on the two motions, although a motion for judgment as a matter of law may be granted although a prior motion for summary judgment 7% As the Supreme Court has explained, "in ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidence burden." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). A.42 BRYAN v. JAMES E. HOLMES REGIONAL MEDICAL CENTER raising the same issues had been denied. Therefore, we adopt the Ninth Circuit’s statement of the applicable standard in this case as well: "[O]ur inquiry focuses on whether [Bryan] provided sufficient evidence to permit a jury to find that he ha[d] overcome, by a preponderance of the evidence, the presumption that [the Hospital] would reasonably have believed" that it had met the standards of section 11112(a). Austin, 979 F.2d at 734. [7] If a jury returns a verdict awarding damages to a disciplined physician but the evidence at trial conclusively demonstrates that the defendant has satisfied HCQIA standards for peer review procedures (thereby being entitled to immunity from monetary liability), then the court should grant a post- trial judgment as a matter of law under Rule 50(b). We must examine the record in this case to determine whether Bryan satisfied his burden of producing evidence that would allow a reasonable jury to conclude that the Hospital’s peer review disciplinary process failed to meet the standards of HCQIA. B. [8] Before determining whether the procedural standards for proper peer review proceedings were satisfied in this case, we first note that the events and entities at issue here fall squarely within the definitions of HCQIA’s operative terms. The disciplinary action at issue here is the November 1990 decision by the Holmes board of directors to revoke Bryan’s staff privileges. The term "professional review action" is defined in HCQIA as follows: [A]n action or recommendation of a professional review A.43 BRYAN v. JAMES E. HOLMES REGIONAL MEDICAL CENTER body which is taken or made in the conduct of professional review activity, which is based on the competence or professional conduct of an individual physician (which conduct affects or could affect adversely the health or welfare of a patient or patients), and which affects (or may affect) adversely the clinical privileges . . . of the physician. 42 U.S.C. § 11151(9). The revocation of Bryan’s staff privileges therefore qualifies as such a professional review action; the statute seems to contemplate inclusion of the recommendations upon which the board’s ultimate decision was based--here, the recommendations of the Chanda panel and the executive committee--within the scope of the relevant conduct. [9] A "professional review body" is defined as "a health care entity and the governing body or any committee of a health care entity which conducts professional review activity, and includes any committee of the medical staff of such an entity when assisting the governing body in a professional review activity." Jd. § 11151(11). Furthermore, the term "health care *? While its meaning is generally apparent, the statute does provide the following definition of "professional review activity”: [A]n activity of a health care entity with respect to an individual physician-- (A) to determine whether the physician may have clinical privileges with respect to, or membership in, the entity, (B) to determine the scope or conditions of such privileges or membership, or (C) to change or modify such privileges or membership. 42 U.S.C. § 11151(10). Again, the termination of Bryan’s medical staff privileges clearly falls within HCQIA definition. A.44 BRYAN vy. JAMES E. HOLMES REGIONAL MEDICAL CENTER entity” includes "a hospital that is licensed to provide health care services by the State in which it is located." Id § 11151(4)(A)(i). The Holmes decisionmakers in Bryan’s case fall within those categories. As a result, the Hospital is entitled to immunity from monetary liability under section 11111(a) of HCQIA if the peer review process met the standards set forth in section 11112(a). C. [10] As stated above, a professional review action must satisfy the four standards of section 11112(a) in order to qualify for the immunity protections of section 11111(a). We discuss each in turn and conclude that the Hospital’s termination of Bryan’s clinical privileges met HCQIA requirements. l. [11] First, a review of the record makes clear that the decision to terminate Bryan’s clinical privileges at Holmes was taken "in the reasonable belief that the action was in the furtherance of quality health care." Jd § 11112(a)(1). This prong of the HCQIA immunity test is met if "the reviewers, with the information available to them at the time of the professional review action, would reasonably have concluded that their action would restrict incompetent behavior or would protect patients." H.R.Rep. No. 903, at 10, reprinted in 1986 U.S.C.C.A.N. at 6293. The record in this case reveals that the revocation of Bryan’s privileges was prompted by the reasonable belief that dcing so would promote quality health care. Bryan had exhibited a pattern of unprofessional conduct A.45 BRYAN v. JAMES E. HOLMES REGIONAL MEDICAL CENTER over a period of many years, and he was given a series of opportunities to remedy his difficulties in interacting with other staff members. Eventually, the Hospital concluded that, be- cause of his behavior, Bryan’s presence in the operating room and in patient rooms was disruptive and interfered with the important work of other employees. Moreover, the board was properly concerned about the circumstances surrounding the misdirection of the two patients to surgery. Accordingly, the Hospital dealt appropriately with the perceived situation in terminating Bryan’s privileges. At trial, Bryan asserted that the members of the board of directors and the executive committee were primarily motivated by personal animosity and not by concern for patient care. He introduced no evidence, however, that such hostility determined the outcome of the peer review process. Moreover, Bryan’s "assertions of hostility do not support his position (that the Hospital is not entitled to the HCQIA’s protections] because they are irrelevant to the reasonableness standards of § i1112(a). The test is an objective one, so bad faith is immaterial. The real issue is the sufficiency of the basis for the [Hospital’s] actions." Austin, 979 F.2d at 734. We therefore conclude that Bryan failed to provide sufficient evidence to permit a jury to find that he had overcome, by a preponderance of the evidence, the presumption that the Hospital’s disciplinary action was taken in the reasonable belief that it would further quality patient care. 2. [12] Second, a review of the record reveals that the Holmes board of directors took its action "after a reasonable effort to A.46 BRYAN v. JAMES E. HOLMES REGIONAL MEDICAL CENTER obtain the facts of the matter." 42 U.S.C. § 11112(a)(2). The board terminated Bryan’s medical staff privileges only after Bryan’s conduct had been evaluated by the executive committee, the Chanda peer review panel, and an appellate review panel of board members. Each of those groups submitted reports to the board, which made its decision based upon the documentary record developed during the various peer review proceedings and after Bryan had the opportunity, to make a presentation. Bryan introduced no competent evidence at trial to suggest that the Hospital’s efforts to obtain the facts before terminating his staff privileges were not reasonable. a [13] Third, Bryan’s staff privileges were revoked only "after adequate notice and hearing procedures [were] afforded to the physician involved or after such other procedures as [were] fair to the physician under the circumstances." /d. § 11112(a)(3). As noted above, section 11112(b) sets forth the "safe harbor" conditions that a health care entity must meet regarding adequate notice and hearing. Section 111!12(b) provides as follows: A health care entity is deemed to have met the adequate notice and hearing requirement of subsection (a)(3) of this section with respect to a physician if the following conditions are met (or are waived voluntarily by the physician): (1) Notice of proposed action ape A ta eats elt os by 5) A.47 BRYAN v. JAMES E. HOLMES REGIONAL MEDICAL CENTER The physician has been given notice stating-- (A)(i) that a professional review action has been proposed to be taken against the physician, (ii) reasons for the proposed action, (B)(i) that the physician has the right to request a hearing on the proposed action, (11) any time limit (of not less than 30 days) within which to request such a hearing, and (C) a summary of the rights in the hearing under paragraph (3). (2) Notice of hearing If a hearing is requested on a timely basis under paragraph (1)(B), the physician involved must be given notice stating-- (A) the place, time, and date, of the hearing, which date shall not be less than 30 days after the date of the notice, and (B) a list of the witnesses (if any) expected to testify at the hearing on behalf of the professional review body. (3) Conduct of hearing and notice If a hearing is requested on a timely basis under A.48 BRYAN v. JAMES E. HOLMES REGIONAL MEDICAL CENTER paragraph (1)(B)-- (A) subject to subparagraph (B), the hearing shall be held (as determined by the health care entity)-- (1) before an arbitrator mutually acceptable to the physician and the health care entity, (ii) before a hearing officer who is appointed by the entity and who is not in direct economic competition with the physician involved, or (iii) before a panel of individuals who am appointed by the entity and are not in direct competition with the physician involved; (B) the right to the hearing may be forfeited if the physician fails, without good cause, to appear; (C) in the hearing the physician has the right-- (1) to representation by an attorney or other person of the physician’s choice, (ii) to have a record made of the proceedings, copies of which may be obtained by the physician upon payment of any reasonable charges associated with the preparation thereof, (ii1) to call, examine, and cross-examine witnesses, (iv) to present evidence determined to be relevant by the A.49 BRYAN v. JAMES E. HOLMES REGIONAL MEDICAL CENTER hearing officer, regardless of its admissibility in a court of law, and (v) to submit a written statement at the close of the hearing, and (D) upon completion of the hearing, the physician involved has the right-- (i) to receive the written recommendation of the arbitrator, officer, or panel, including a statement of the basis for the recommendations, and (ii) to receive a written decision of the health care entity, including a statement of the basis for the decision. Id. § 11112(b). As the summary of the facts of the case in part II of this opinion reflects, each of these procedural requirements of section 11112(b) was satisfied. Documents introduced at trial indicate that the Hospital complied with the notice requirements and that the hearings were hold in a timely fashion and in accordance with the Hospital’s bylaws. Bryan was afforded full rights of representation, cross-examination, and confrontation. Bryan’s principal argument is that the board of directors did not have a transcript of the Chanda panel hearings when it ren- dered its decision. Yet HCQIA, like the Holmes bylaws, requires only that the Hospital ensure that a record of the proceedings be made; Bryan had the responsibility to request A.50 BRYAN v. JAMES E. HOLMES REGIONAL MEDICAL CENTER a complete transcript if he thought the board should have one, and he did not. It should be noted that section 11112(b) specifically provides that the failure of a review body to meet the enumerated conditions does not, per se, constitute a failure to meet the standards of section 11112(a)(3). Indeed, "[i]f other procedures are followed, but are not precisely of the character spelled out in (section 11112(b)], the test of ‘adequacy’ may still be met under other prevailing law." H.R.Rep. No. 903, at 10, reprinted in 1986 U.S.C.C.A.N. at 6393. Moreover, Bryan made no contemporaneous objections to the manner in which the hearing procedures were conducted; section 11112(b) explicitly provides that compliance with its terms is not required if the physician voluntarily waives them. On the record of this cue, we conclude that no reasonable jury could conclude that the Hospital had not afforded Bryan the adequate procedures. 4. [14] Finally, there is no question that the board decided to terminate Bryan "in the reasonable belief that the action was warranted by the facts known." 42 U.S.C. § 11112(a)(4). Again, the record reveals that the board certainly had a factual basis for its action. Bryan concedes that the incidents that led to his termination actually occurred; his only argument is that they did not justify the severe sanction he received. HCQIA clearly grants broad discretion to hospital boards with regard to staff privileges decisions. Accordingly, as in all procedural due process cases, the role of federal courts "on review of such actions is not to substitute our judgment for that of the A.51 BRYAN v. JAMES E. HOLMES REGIONAL MEDICAL CENTER 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 A.66 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1237%3A2. Public record. Not legal advice.