Opposition Brief — Bryan v. James E. Holmes Regional Medical Center

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No. 94-1323 "

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IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1994

FLOYD T. BRYAN, and

FLOYD T. BRYAN, M.D., P. A.

Petitioners,

JAMES E. HOLMES REGIONAL

MEDICAL CENTER, a/k/a/ HOLMES

REGIONAL MEDICAL CENTER, INC.

Respondent.

RESPONSE TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

February 23, 1995

Christopher K. Kay

Ronald M. Schirtzer

FOLEY & LARDNER

111 North Orange Ave.

Post Office Box 2193

Orlando, Florida 32802

(407) 423-7656

Alan C. Sundberg

Counsel of Record

Sylvia H. Walbolt

Gary L. Sasso

CARLTON, FIELDS, WARD,

EMMANUEL, SMITH &

CUTLER, P.A.

One Progress Plaza

Post Office Box 2861

St. Petersburg, Florida 33731

Attorneys for Respondents

ee Re ee AP te Ree eS Pe ee ey Se eee PS oe ee ee ey 2

No. 94-1323

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1994

FLOYD T. BRYAN, and

FLOYD T. BRYAN, M.D., P. A. '

Petitioners,

vs.

JAMES E. HOLMES REGIONAL

MEDICAL CENTER, a/k/a/ HOLMES

REGIONAL MEDICAL CENTER, INC.

Respondent.

RESPONSE TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

February 23, 1995

Christopher K. Kay Alan C. Sundberg

Ronald M. Schirtzer Counsel of Record

FOLEY & LARDNER Sylvia H. Walbolt

111 North Orange Ave. Gary L. Sasso

Post Office Box 2193 CARLTON, FIELDS, WARD,

Orlando, Florida 32802 EMMANUEL, SMITH &

(407) 423-7656 CUTLER, P.A.

One Progress Plaza

Post Office Box 2861

St. Petersburg, Florida 33731

Attorneys for Respondents

QUESTION PRESENTED

Whether the Eleventh Circuit Court of Appeals correctly

determined that the Hospital was immune from liability for

monetary damages under the Health Care Quality Improvement Act

of 1986, 42 U.S.C.A. §§ 11101-11152, where the court

determined that all of the standards of the Act were met, including

the presence of a “reasonable belief” on the part of the Hospital

that its peer review action “was in furtherance of quality health

care."

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TABLE OF CONTENTS

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STATEMENT OF THE CASE AND FACTS .......... 1

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TABLE OF AUTHORITIES

CASES

Austin v. McNamara,

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Fobbs v. Holy Cross Health Care System Corp.,

29 F.3d 1439 (9th Cir. 1994), aff’g 789

F. Supp. 1034 (E.D. Cal. 1992), cert.

denied, 63 U.S.L.W. 3559 (U.S. Jan. 23,

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Imperial v. Suburban Hospital Ass’n, Inc.,

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Mahmoodian v. United Hospital Center, Inc..,

404 S.E.2d 750 (W. Va. 1991), cert. denied,

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Mitchell v. Forsyth,

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Smith v. Ricks,

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United States v. Johnston,

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STATUTES AND OTHER AUTHORITIES

Health Care Quality Improvement Act of 1986, 42

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42 U.S.C.A. § SeimmeEK Leer TT ore reed 7

Rule 50, RT 6 in eicen snug see ema 11

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H.R. Rep No. 903, 99th Cong., 2d Sess. 12,

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STATEMENT OF THE CASE AND FACTS

Petitioners ask this Court to grant a writ of certiorari to

review the decision of the Eleventh Circuit Court of Appeals

holding that the respondent Hospital is immune under the Health

Care Quality Improvement Act ("the HCQIA” or "the Act") from

liability for monetary damages due to its decision to terminate staff

privileges for Dr. Bryan. Petitioners’ Statement of thé Case omits

or misstates the material facts relied on by the lower court in

rendering its decision. Those facts and the procedural history of

this case are set forth in detail in the lower court’s opinion.”

They may be briefly summarized as follows.

Respondent Holmes Regional Medical Center is a non-profit

corporation operating a private hospital in Melbourne, Florida.”

A. 15. Dr. Bryan was granted staff privileges in 1976 but he

engaged in disruptive behavior from the outset of his association

with the Hospital. A. 22-23. As noted in the Eleventh Circuit's

opinion, Dr. Bryan “exhibited a pattern of unprofessional conduct

over a period of many years, and he was given a series of

opportunities to remedy his difficulties in interacting with other

staff members." A. 44-45. Several illustrative incidents are

described in the court’s opinion. A. 24-25. Dr. Bryan conceded

that the complaints about his conduct were not “fabrications” and |

that he had a problem with his temper and with his inter-personal

dealings with his colleagues and the Hospital staff. A. 23; see also

R18-1545, 1637, 1645.

Ultimately, the Hospital’s Board of Directors advised Dr.

Bryan that his abusive behavior would not be tolerated any longer

and that 2ny further incidents of unprofessional behavior would

Y The Eleventh Circuit’s opinion is contained in Volume 1

of petitioners’ appendix at A. 1-52.

2 The Hospital has no parent companies or subsidiaries to

be listed pursuant to Sup. Ct. R. 29.1.

-2-

result in the permanent revocation of his privileges. A. 26. When

additional incidents nevertheless occurred, a peer review hearing

was held, as provided in the Medical Staff by-laws. A. 27-28.

The panel unanimously found that the most recent incidents “were

amply supported by the record.” A. 30. Concluding that Dr.

Bryan’s behavior was below acceptable standards and adversely

impacted upon the Hospital’s ability to deliver quality patient care,

the panel recommended a two year suspension. A. 30-31.

On appeal by Dr. Bryan to the Hospital’s Board of Directors,

the Board adhered to its prior decision that any further instances

of unprofessional conduct would lead to the termination of Dr.

Bryan’s privileges. A. 31. As reflected in the Eleventh Circuit

Court’s opinion:

[T]he Hospital concluded that, because 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.

A. 45. Accordingly, the Board voted unanimously to terminate

Dr. Bryan’s clinical privileges. A. 31.

Before his staff privileges were terminated, Dr. Bryan

received the full panoply of procedural protections set forth in the

HCQIA. A. 44-50; see also A. 22-32. In the words of the

Eleventh Circuit, which carefully reviewed in Part II of its opinion

the peer review process at issue in this case, “each of these

procedural requirements of section 11112(b) was satisfied.” A. 49.

Thus, Dr. Bryan was:

(1) advised of the intended disciplinary action against

him and the reasons for such action [Ex. 232, R13-158];

3.

(2) advised of his right to request a peer review

hearing and the time limit for requesting peer review

[/d.};

(3) given timely notice of all proceedings by the

Hospital related to the revocation of his staff privileges

[R19-1894; Ex. 237, R23-2480);

(4) given prior notice of the procedures to be utilized

at the peer review hearing, and of the witnesses who

would testify against him at the hearing and the nature of

their expected testimony [R15-7 19-20; Exs. 237-38, R23-

2480-81];

(5) advised of the hearing officer and members of the

peer review panel appointed by the Hospital, none of

whom were in direct competition with Dr. Bryan [/d.],

and given the opportunity to object to the proposed

hearing officer and members on grounds of bias or

conflict of interest, which opportunity he took advantage

of [R19-1892; Ex. 237];

(6) provided with the Opportunity to and did attend the

peer review panel hearing with counsel of his choice

(R13-20; R15-721, 726; R19-1894-95);

(7) permitted to cross examine the witnesses against

him and present his own witnesses [7d., R13-204-05);

(8) had the opportunity to obtain a written transcript of

the proceedings before the peer review panel upon

payment of reasonable charges for the preparation thereof

[R17-1186-87];

(9) had the opportunity to present evidence deemed

relevant by the hearing officer to the peer review panel,

whether or not such evidence was admissible in a court

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of law [Pl. Ex. 148, | 43.6, R13-141; See, e.g., Pl. Ex.

168, R13-196);

(10) given a written report containing the

recommendations of the panel and a statement of the

basis for the recommendations [R15-737; Pl. Ex. 401,

R12-91];

(11) given notice of the Executive Committee’s

recommendation to the Board following peer review and

notice of his right to appellate review [Ex. 245, R23-

2486];

(12) provided with appellate review of the

recommendation of the Executive Committee to the

Board following peer review before a panel of Board

Members, including the right to submit written or oral

argument to the members of the appellate panel [P1. Ex.

148, | 44.1; Exs. 245-47, R23-2486, 2499-2500]; and

(13) given written notification of the Board’s final

decision, including a statement of the basis for the

decision [R14-373; Ex. 251, R23-2503].

Following his termination from staff, Dr. Bryan sued the

Hospital, the individual members of the Board of Directors, the

physicians who were members of the Hospital’s Medical Executive

Committee, and two nurses. A. 32. The complaint included

federal and state antitrust claims as well as state law claims for

defamation, negligent supervision of the peer review process, and

breach of the Medical Staff by-laws. Id.

By summary judgment order, the district court dismissed Dr.

Bryan’s federal and state antitrust claims for damages but held that

he could assert a claim for injunctive relief under the antitrust

laws. A. 34. The court also granted summary judgment on Dr.

Bryan’s claims against the members of the Board of Directors. Jd.

However, the court denied the Hospital’s motion for summary

judgment based on the immunities provided by the HCQIA and by

state law. A. 33-34.

At the close of Dr. Bryan’s case, the court directed a verdict

in favor of all the remaining individual defendants. A. 35. The

court held that there was no evidence of any conspiracy, [R20-5-

6], and noted that there had been “fifteen years of complaints"

concerning Dr. Bryan’s conduct, and no “nexus befween those

complaints and any of the defendants.” R22-2003. The court

further determined that none of the individual defendants was a

direct economic competitor of Dr. Bryan. Id.; R20-5-6. The

court denied the Hospital’s motion for a directed verdict based

upon the HCQIA. A. 35.

Under instructions and a verdict form that were objected to by

the Hospital, the jury returned a verdict for Dr. Bryan, finding that

the Hospital had terminated Dr. Bryan in violation of its by-laws

and awarding Dr. Bryan $4,181,242, and further finding that the

Hospital had violated state and federal antitrust laws. A. 35-36.

The district court denied the Hospital’s post-trial motions,

including its motion for judgment based on the HCQIA immunity.

A. 40, n.27.

The Eleventh Circuit reversed. The court specifically

determined that “[tJhe record in this case reveals that revocation of

Bryan’s privileges was prompted by the reasonable belief that

doing so would promote quality health care." A. 44. It further

concluded that the record established that the Hospital’s action

satisfied the other standards of the HCQIA. A. 45-51. The court

accordingly held that the Hospital was “entitled to the immunity

from damages liability granted by HCQIA in §11111(a)." A. 51.

Petitioners’ Suggestion for Rehearing En Banc was denied.

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SUMMARY OF ARGUMENT

In holding that the Hospital could not be held liable for

monetary damages for its peer review decision in this case, the

Eleventh Circuit faithfully applied the immunity provision under

the HCQIA in accordance with its explicit standards. Its decision

presents no conflict with any decision of this Court or any other

circuit court. Based on the facts of this particular case, its decision

affording the Hospital HCQIA immunity was eminently correct.

Accordingly, the petition for a writ of certiorari should be denied.

ARGUMENT

Petitioners ask this Court to exercise its discretion to review

the Eleventh Circuit’s decision on the ground that it improperly

construed the HCQIA and impermissibly denied petitioners their

right to a jury trial by holding that the Hospital was entitled to the

immunity from liability for damages afforded under that Act.

There is nothing about petitioners’ challenge of the Eleventh

Circuit’s decision that warrants plenary review by this Court. To

the contrary, that decision is carefully reasoned and based on the

court’s thorough consideration of the record. Moreover, it is fully

consistent with the decisions of the other circuit courts that have

construed and applied the HCQIA to preclude damages liability for

a hospital peer review decision which complied with the standards

set forth in the Act.

In short, this is a straight-forward case of statutory

construction. There is no conflict among the circuits as to how the

HCQIA should be applied, and there is nothing else about this case

that warrants this Court’s attention. Petitioners simply quarrel

with the outcome of the Eleventh Circuit’s application of the

HCQIA’s immunity to the Hospital in this case.

1. In upholding the Hospital’s immunity from damages

liability for its termination of Dr. Bryan’s staff privileges, the

Eleventh Circuit examined the statutory scheme in detail. It

observed that the HCQIA was enacted because “Congress found

Jo

that ‘[t]he threat of private money damage liability under [state

and] Federal laws, including treble damage liability under Federal

antitrust law, umreasonably discourages physicians from

participating in effective professional peer review."” A. 9. In an

effort “to balance the chilling effect of litigation on peer review

with concerns for protecting physicians improperly subjected to

disciplinary action . . . 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.” A. 10-11.

Thus, the HCQIA provides complete immunity from damage

awards for peer review actions 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 by the facts known after such

reasonable effort to obtain facts... ." 42 U.S.C.A. § 11112(a).

The peer review action is presumed to have met those standards

“unless the presumption is rebutted by a preponderance of the

evidence.” Id.

Petitioners’ challenge to the Eleventh Circuit’s construction

and application of this statutory immunity is founded on their

disagreement with the court’s conclusion that “the statute’s

reasonableness requirements were intended to create an objective

standard of performance, rather than a subjective good faith

standard."* A. 14-15; see also A. 45. This construction of the

HCQIA was, however, reached by time-honored means, and it is

an entirely reasonable construction.

2 The court also held that Dr. Bryan had, in any event, failed

to establish that any personal animosity of the individual defendants

“determined the outcome of the peer review process." A. 45.

The Eleventh Circuit carefully reviewed the language of the

HCQIA. By its express terms, the Act does not impose any

standard of “good faith” but rather requires the “reasonable belief

that the action was in the furtherance of quality health care” and

“the reasonable belief that the action was warranted by the facts

known after such reasonable effort to obtain facts... .”

§11112(a)(1), (4).

The court also reviewed the legislative history that made clear

that Congress intended to adopt this objective standard rather than

a subjective “good faith" standard. Thus, although a “good faith”

standard was initially considered, this was abandoned in favor of

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, 99th Cong., 2d Sess. 12, reprinted in

1986 U.S.C.C.A.N. 6393 (A. 302) (cited by the Eleventh Circuit

in the instant case, (A. 15, 44)) (emphasis supplied).

Petitioners also argue that the Eleventh Circuit erred in

relying on this statement in the House Energy and Commerce

Committee report, suggesting that subsequent amendments made

the report irrelevant. That is simply not the case. No subsequent

amendment changed the governing standard from the objective test

back to the originally contemplated “good faith" test. The

Eleventh Circuit’s reliance on the Committee’s statement as

indicating the legislative intent with respect to the “reasonable

belief” standard was completely proper.

Further, the court considered and followed the only circuit

court decision that had addressed this issue at the time. In that

decision, Austin v. McNamara, 979 F.2d 728, 734 (9th Cir. 1992),

the Ninth Circuit, citing the same legislative history, expressly held

that “[tJhe test is an objective one, so bad faith is immaterial. The

real issue is the sufficiency of the basis for the [Hospital’s]

actions." It is this language from Austin, quoted by the Eleventh

Circuit at A. 45, that petitioners complain of, without disclosing

that the Eleventh Circuit was simply concurring in the Ninth

Circuit’s construction of the Act.

Significantly, each of the circuit courts that have addressed

this issue have concluded that an objective standard is to be applied

in determining the reasonableness of the peer review process. See

Imperial v. Suburban Hospital Ass'n, Inc., 37 F.3d 1026, 1929

(4th Cir. 1994) (“the standard is an objective one which looks to

the totality of the circumstances"); Smith v. Ricks, 31 F.3d 1478,

1485 (Oth Cir. 1994) ("[T]he ‘reasonableness’ requirements of §

11112(a) were intended to create an objective standard, rather than

a subjective standard"); Fobbs v. Holy Cross Health Care System

Corp., 29 F.3d 1439 (9th Cir. 1994), aff’g 789 F. Supp. 1034

(E.D. Cal. 1992) (Congress chose an “objective” standard for

HCQIA), cert. denied, 63 U.S.L.W. 3559 (U.S. Jan. 23, 1995)

(No. 94-994); Furthermore, although petitioners assert that the

filing of opposing amicus briefs below by the American Medical

Association and the American Hospital Association demonstrates

the need for “guidance” from this Court on the proper

.interpretation of the Act, [Pet. at 14, n.14], all of the amici

acknowledged that the Hospital’s entitlement to immunity from

damages must be determined on the basis of an “objective” rather

than a “subjective” standard. [AMA 7-8; AHA 7-8].

In short, the Eleventh Circuit’s decision comports with (1) all

of the decisions of other circuits on this issue, (2) the express

statutory language, which nowhere imposes a standard of

subjective “good faith" but rather expressly imposes a standard of

“reasonableness,” and (3) the legislative history, which establishes

that Congress considered a “good faith” standard but specifically

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changed to a "more objective ‘reasonable belief’ standard.” There

is nothing extraordinary about the court’s construction of the Act

or the principles it utilized in reaching that construction. The

petition is nothing more than an expression of dissatisfaction with

the outcome of the Eleventh Circuit’s decision in this case and

presents no substantial question warranting review by this Court.

2. Petitioners further claim that the Eleventh Circuit has

“created a ‘new’ standard to be applied in the litigation of HCQIA

cases." Pet. at 20. According to petitioners, the court “has

specifically ruled that the question of whether a defendant has

complied with the four immunity standards of the HCQIA .. . is

never a question for the jury, even if there exist genuine issues of

fact." Id.

As shown on the face of its opinion, the court made no such

ruling. Rather, the court simply held that the “ultimate question"

of immunity from monetary liability under HCQIA is for the court

to resolve, and it expressly stated that “disputed subsidiary issues

of fact concerning HCQIA immunity” are to be submitted to the

jury by way of special interrogatory. A. 39-40; see also A. 42.

Where, however, the “evidence at trial conclusively demonstrates

that the defendant has satisfied HCQIA standards for peer review

procedures . . . then the court should grant a post-trial judgment

as a matter of law under Rule 50(b).” A. 42 (emphasis supplied).

This interpretation of the Act is fully consistent with its

avowed statutory purpose to remove the threat of monetary liability

against those who participate in a peer review process meeting the

standards set forth in the Act. That is exactly why Congress

created a rebuttable presumption of immunity for such a process.

The “unusual” standard that petitioners assail was established by

Congress when it enacted the HCQIA, not by the Eleventh Circuit

in the decision below.

Moreover, petitioners’ contention that the Eleventh Circuit has

created a “new” standard for summary judgment motions in

HCQIA cases is plainly wrong. The Eleventh Circuit did nothing

nit.

more than give effect to this express statutory presumption by

requiring the complaining physician to come forward with evidence

establishing that the objective standards of the Act were not

satisfied. A. 42. Absent such proof, judgment must be entered

granting immunity from damages to the peer review participants.

A. 40-42. Once again, the court’s holding is completely consistent

with the decisions of other circuit courts holding, that such

immunity should be granted as a matter of law when the standards

of the Act are satisfied. See Imperial, 37 F.3d at 1030; Smith, 31

F.3d at 1485, 1487; Fobbs, 29 F.3d at 1443; Austin, 979 F.2d at

733-34.

Furthermore, contrary to petitioners’ argument, this

construction does not represent an improper extension of the

teachings of this Court with respect to the grant of qualified

immunity in Section 1983 cases. The court merely cited Mitchell

v. Forsyth, 472 U.S. 511 (1985), for the proposition that “[i]n

qualified immunity cases, the favored approach is to have the

immunity determination made by the court, prior to trial, whenever

possible.” A. 39 n.26. Petitioners’ quarrel is not with the

Eleventh Circuit’s reliance on the teachings of Section 1983 cases,

but rather with the court’s conclusion that petitioners failed to

present evidence sufficient to create a genuine issue under the

standards imposed under the HCQIA.

Petitioners further argue that the Eleventh Circuit’s

construction of this statutory presumption of immunity deprives

them of their Seventh Amendment right to a jury trial. However,

the mere fact that judgment must be rendered against petitioners as

a matter of law, whether under Rule 50 or 56, does not implicate

the Seventh Amendment. In order to create a triable issue for the

jury, a plaintiff must be able to demonstrate a genuine issue of fact

that is material under the applicable substantive law. The Eleventh

Circuit simply found that petitioners had failed to do that and

hence there was nothing for the jury to determine in this case.

The Eleventh Circuit’s decision is fully consistent with the

language of HCQIA and its intent to bolster the pre-existing

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reluctance of courts to interfere with staffing decisions of

governing bodies of hospitals by providing a presumed immunity

from monetary damages. Petitioners’ attempt to portray far-

reaching ramifications of the Eleventh Circuit’s decision is merely

the familiar argument of a party disappointed over the outcome of

an appeal.

3. Petitioners also assert that they rebutted the HCQIA

presumption “as a matter of law" by presenting evidence that (a)

“direct economic competitors" participated in the peer review

proceedings, (b) the proceedings were conducted in “bad faith,"

and (c) the termination was motivated by “improper economic

reasons." Pet. at 29. This contention is refuted by even the most

cursory review of the record.

First of all, as petitioners concede [Pet. 28], the HCQIA only

requires that the members of the hearing panel not be economic

competitors of the physician being reviewed; there is no

requirement that competitors avoid participation in other aspects of

the peer review process. Here, as the Eleventh Circuit pointed

out, “none of the panel members were . . . Bryan’s direct

economic competitors.” A. 28-29 n.16. The express requirements

of the HCQIA were accordingly satisfied. Moreover, even under

Dr. Bryan’s expanded view of the HCQIA requirements, no

economic competitors participated in other parts of this peer review

process. Although Dr. Bryan states that Drs. Gurri and Armstrong

were his “direct economic competitors,” the trial court specifically

determined that they were not competitors of Dr. Bryan, and

should accordingly be dismissed from the case, a ruling that Dr.

Bryan did not challenge on appeal. R20-5-6. See also R15-679;

R17-1370.

Second, despite petitioners’ repeated references to the jury’s

and the district court’s supposed “findings” that the Hospital acted

in “bad faith,” no such findings were made. A. 36. Moreover,

the Eleventh Circuit specifically determined, based on its review

of the record, that the hostility of certain members of the Medical

Staff was not the cause of the Board’s termination of Dr. Bryan’s

staff privileges and that the Board was instead motivated by

concerns for quality patient care — concerns that were raised by

disruptive behavior such as Dr. Bryan’s is a proper basis for

disciplinary action. See Mahmoodian v. United Hospital Center,

Inc., 404 S.E. 2d 750, 760-61 (W. Va. 1991) ¢ numerous

state and federal decisions to that effect), cert. wag - Ss

__» 112 S. Ct. 185 (1991) (cited by the lower court at A. 51).

Third, petitioners’ contention that the Hospital was improperly

motivated to terminate Dr. Bryan’s staff privileges because his

surgeries for Medicare patients “lost money for the hospital” [Pet.

29-30] is also belied by the record. Although it is true that

petitioners contended Dr. Bryan showed a loss on his Medicare

patients, it was undisputed that he showed a substantial profit on

his non-Medicare patients and was highly profitable for the

Hospital on an over-all basis. Pl. Ex. 397, R17-1155. Indeed, of

the Hospital’s staff of some 220 doctors, he was the thirteenth or

fourteenth most profitable doctor. Jd.; R24-2664. Dr. Bryan’s

economic expert frankly conceded there was no economic reason

for the Hospital to terminate Dr. Bryan’s privileges “when you

consider the total patient mix. . . .". R17-1320-21.

As can be readily seen, the petition amounts to nothing more

than a request to reexamine the record and the lower court’s

decision in light of that record. It is not, however, the function of

this Court “to grant a certiorari to review evidence and to discuss

specific facts." United States v. Johnston, 268 U.S. 220, 227

(1925).

4. Petitioners finally urge this Court to exercise its “power

of supervision” because, according to petitioners, the Eleventh

Circuit “departed from the accepted and usual course of

proceedings” by failing to identify the standard of review it was

applying. Pet. at 31-32. The Eleventh Circuit did, however,

specify the standard of review it was applying, A. 40-42, and that

-14-

standard of review is consistent with the well-settled precedent

cited by the court.

In sum, the Eleventh Circuit’s decision does not conflict with

any decision of this Court or any other Court of Appeals.

Petitioners simply disagree with the lower court’s application of the

HCQIA standards to the peer review proceedings afforded Dr.

Bryan and its conclusion that the Hospital’s peer review action

complied with those standards. There is no substantial issue that

warrants review by this Court of this fact-bound decision.

CONCLUSION

For the foregoing reasons, this Court should deny the petition

for a writ of certiorari.

February 23, 1995 Respectfully submitted,

Christopher K. Kay

Ronald M. Schirtzer

FOLEY & LARDNER

111 North Orange Avenue

Suite 1800

Orlando, Florida 32802-2193

and

Alan C. Sundberg

Counsel of Record

Sylvia H. Walbolt

Gary L. Sasso

CARLTON, FIELDS, WARD,

EMMANUEL, SMITH &

CUTLER, P. A.

One Progress Plaza

St. Petersburg, Florida 33701

Attorneys for Respondent