Petition for Writ of Certiorari — Bok v. Mutual Assurance, Inc.

Supreme Court brief1998

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S,

FiL&£D

971456 MAR 36

OF THE CLERK

In The

Supreme Court Of The United States

October Term, 1997

DUARD BOK, MD,

Petitioner,

MUTUAL ASSURANCE, INC.

Respondent

On Petition For A Writ Of Certiorari To The United

States Court Of Appeals For The Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Jerome Berg

Counsel of Record

Jerome Berg, Esq.

1255 Post Street, Suite 606

San Francisco,

California 94109

(415) 775-7751

Counsel for Petitioner

QUESTIONS PRESENTED FOR REVIEW

Appellant seeks affirmative interpretation of 42 U.S.C.

§ 11,101 et seq., the Health Care Quality Improvement Act of

1986 (hereinafter "HCQIA") implying that it authorizes a cause

of action to require health care industry peer review to meet its

due process provisions.

tle. tin, — SS -~ ~ tld lls. sildiraencetttieercencertllt—cetttlin_-<tlin eS —

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW.................:00ccceceeeeeee: i

TABLE OF CONTENTS ............... MANGES SPE eh HORNE EON Fev hE ii

TABLE OF AUTHORITIES ........... sibaccaninge cman eee

PETITION FOR A WRIT OF CERTIORART..................ccccseeeeeeees l

CF EPR ee RMDP OY nis saricceinncuadcstercicakcashoioeicioeinbtloiaerbutaana

I. JURISDICTIONAL STATEMENT ................. acsbh ial cs l

II. ~FP SITE Ey Soi. +. . Serer nei nas. oe 2

Il. ST AT SRO GIR ARE KPI oops ceacenccensdscecsaceseteeveaciunnsa

A. Backeround Facts.............sssssss0. asdabascecsandcucaoneal 6

B. PATIRERAIE DOD vcsisksscctiericuicemniiekicuece 8

IV. REASONS FOR GRANTING THE

PETITION AND DISCUSSION _~

A. The Question Presented is Important ................. 9

B. BRR CC Ae Te oasis cts 11

ii The Decision of the Court of

FAIDGRED 16. EDDC oss scinesiniteccnrcencecseons 12

2 TESTING A STATUTE FOR IMPLIED

ft BL | ree iccshenkngieaauiieadia amen 12

VI. ANALYSIS OF THE HCOIA.................. tates RP et 13

iii

Vil. THE IMPLIED REMEDY OF LITIGATION

TO ENFORCE GOOD FAITH PEER

la li hiss chat A cchined scnacXethes cacsb Guida neceilniokbcscboce acs 16

Vill. THE PURPOSE OF THE HCQIA IN

BE gg AER EU PINES aR DPD COP ONAN EROS ae Re SURE 18

IX. STATUTORY INTERPRETATION.............ccsccsecscessceos. 21

X. OI ala ey

XI. REO IETEIEL SR SOR 920 Un OT Re RIT 26

ge aca 8 AEA REE EEE SHO 0 FARCE ORE ARE PL App. 1

cen et a OEE RES SIS TD CN NG et A Oe App. 2

TEIN Ha ib as Avacstabuipsvhccidedincessciccdastidck selesiknsis occu App. 8

ee 5 SHERI REZ Re eS er ae IS ee App. 13

TABLE OF AUTHORITIES

FEDERAL CASES

Addis _v_Holy Cross, etc. 88 F.3d 482 (7th Cir.

American Tobacco Co. v. Patterson 456 U.S. 63, 71

(1982) ; 22

Commissioner v. Asphalt Products Co., Inc. 482

MB be Mile a 8 + RRR INS I gga andra diet api Sart 0 a Ney 22

a ge Ro BSR ae” 8 hs) roe ee iz, 17; 20

Goldsmith v_ Harding Hosp. Inc. 762 F. Supp. 187,

ee RE Ae NN EE ED niak i caiandesccginenceicasachan Goupmosgachlphoudaenns 23

Griffin v. Oceanic Contractors, Inc., 458 U.S. 564,

og BG 0 2 BERRA Neem Pa Eee rd cer PMT N AE RYE ROUT TN

Hancock v_ Blue Cross-Blue Shield of Kansas 21

F.3d 373, 374 (10th Cir. 1994)..................... SES oe Pee EON 11

John Hancock Mut. Life Ins. Co. v Harris Trust and

Samer, SON STP Leb. Ce CE DRSDascccsivccodsccscscnsacccseoccace Oly Oo

Pagano v Oroville Hospital 145 F.R.D. 683, 686

FEDERAL CASES (continued)

Patrick v_ Burget 88 F.2d 1498 (9th Cir. 1986)

PV Se AE OE vistiithcsdnc ee ee ee

Philbrook v. Glodgett 421 U.S. 707 (1975).........ccccccceee,

Pilot Life Ins. Co. v Dedeaux 481 U.S. 41 (1987)..........

Public Citizen v. Department of Justice 491 U.S.

Rs ARPD havatatatsndettessulardesddcvbabetescahudeon

Stevenson et al. v Howley, MD 95-2619 Lexis

Bem COE Ce, TICE. BO FOIE) vscccinsicesscscnscickscnns

United States v. Turkette 452 U.S. 576, 580 (1981)......

STATE CASES

Gill v Mercy Hospital 199 Cal. App. 3d 889, 903;

oes Cat. Bee, SOG, SIZ CUSSED vino cicscccivsccscopsacse

Pulido v St. Joseph Memorial Hospital 547 N.E. 2d

NGOs RE MEDD cocatsaconicisspabvclacssdsscccesbiccrseescaucos

FEDERAL STATUTES

i i airs in a ee

A I ee

eenne ae

eethiaaes 24

Savers 24

FEDERAL STATUTES (continued)

We Pa Oe Ee Be BI n chen GackceinaglnnedeausGndtiodsbardousvaiuabbasinebeilones im?

42 U.S.C. §

——

PERE EEE EERE HEHEHE HETERO EE HEHEHE OH OEE Oe EERE ee hey

I iat i I ie ais sa eae't gush dss badbonnctcd bapbedacoon aoeocau Wain 5

ee ee ei MM I ctisicaiseisbh icicsrss Aicibiedas da cvcntes adaduousdbeatbacebeaibais 14

ae Manas ED WAIN ehah Divessncirstnhivoubincnessovesabcseadcucdianinbilocsouthstenseusns ae

SP React Ft AINE nce susnccokb tina cénversiasidatncksentelenscisovusedbheakebingle 4, 14

eG Rad Me EP tna vosnennd ch deadisdensiabeacibecinssoicaductuaab oleaatcete i hee

eae ers Se FU Paap ikentiiesdctcsiavnesbhidaxsdanbedtunpcuciceneketetagiiehise eo

AE ca: ae EEE Pcs ies sncihobved vasncovnte sactocsnravadsmmnadiovigecsbaddemccaboadan

42 U.S.C. §§ 11101, et SCG. ..ccccscccsecsesscssssssssssesessssssessesssceseesee dy 13

42 U.S.C. §§ 11111, et DOG, ci vansidensainenctasssostaneapetiaiadesdeihadedeiaaa

MISCELLANEOUS STATUTES

Code of Federal Regulations

45 Code of Federal Regulations 60.7(€)...........cccccccccccceceeeeeeeeeee 11

45 Code of Federal Regulations 60.9(C) ..........cccccccccceseseeceeeseeeee 11

vii

FEDERAL RULES

Federal Rules of Civil Procedure, Rule 54...........ccccccccccssseeeeeeees 1

>}. EIR Oey ea eae) te ee Sih 10

MISCELLANEOUS STATE STATUTES

California Bus. & Prof. Code §809(a)(4) ........ccccccccsccecsceeseeessees 21

New York Public Health Law § 2801-b...........cccccceceecccceceeeeees .18

Texas Rev. Civ. Stat. Ann. art. 4437F, section 17(¢)................ 18

MISCELLANEOUS AUTHORITIES

49 Baylor Law Review 607, 611 fn. 16 “The New

Rules of Show and Tell,” etc. (1997) ........cccccccccssceseeeees 10

49 Rutgers L. Rev. 1397 “Managed Care Contracts

as SN CUR eee 7

McCormick, B. “Managed Care Posing New

Liability Risks,” American Medical News, 13

SND UE MU cia pai iechatasoiiistiad ici ck ce slncasns sac chase, 6

Sagsveen, Murray G., 73 North Dakota Law Review

i TS » SERIERLL SCS REPO Nira CRs Ls Ran EUR EDR 10

Vili

MISCELLANEOUS AUTHORITIES

U.S. Code Congressional and Administrative News,

99th Congress, 2d Session 1986........................15, 20, 21

Vaite, V. and R. Walker, “Medical and Surgical

Peer Review,” American Journal of Surgery

$GS CheaEy. TFPS) qn se ccevsenssece IAPC SEY Ait A Na 6

PETITION FOR A WRIT OF CERTIORARI

Duard Bok respectfully petitions for a writ of certiorari

to review the judgment of the United States Court of Appeals

for the Eleventh Circuit.

OPINIONS BELOW

The published opinions of the District Court (App. 2)

and Circuit Court of Appeals (App. 7) are appended hereto

together with the District Court's order (App. 1) and the denial

of a Petition for Rehearing. (App. 12).

I. JURISDICTIONAL STATEMENT

The United States District Court had subject matter

jurisdiction based upon 28 U.S.C. § 1331, 28 U.S.C. § 1343 and

42 U.S.C. § 11101, et seq. The decision appealed from is a final

judgment, which disposed of the action as to all claims by all

parties, and is therefore appealable as of right. (See 28 U.S.C. §

1291; Rule 54 of the Federal Rules of Civil Procedure)

Judgment pursuant to Federal Rule of Civil Precedure

12(b)(6) was entered February 22, 1996 (App. 1) and the

sini

—

memorandum (App. 2) was published at 917 F. Supp. 788.

The United States Court of Appeals for the Eleventh

Circuit filed its opinion August 15, 1997, (App. 8) which was

published at 119 F.3d 927, and its order denying a Petition for

Rehearing and Rehearing En Banc was filed December 12, 1997.

(App. 13)

Jurisdiction of the United States Supreme Court is

invoked pursuant to 42 U.S.C. § 1254(1).

Il. STATUTORY PROVISIONS

This petition concerns the “due process” for peer review

portions of the Health Care Quality Improvement Act of 1986

(42 U.S.C. § 11,111 et seq.) specifically:

§11112. Standards for professional review

actions

(a) In general. For purposes of the protection set

forth in section 411(a) [42 USCS § 11111(a)], 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 io 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 and after

meeting the requirement of paragraph (3). A

professional review action shall be presumed to

have met the preceding standards necessary for

the protection set out in section 411(a) [42 USCS

§ 11111(a)] unless the presumption is rebutted

by a preponderance of the evidence.

(b) Adequate notice and hearing. A health care

entity is deemed to have met the adequate notice

and hearing requirement of subsection (a)(3) with

respect to a physician if the following conditions

are met (or are waived voluntarily by the

physician):

(1) Notice of proposed action. 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,

(ii) any time limit (of not less than 30 days)

within which to request such a hearing, and

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 paragraph

(1)(b)-

(A) subject to subparagraph (B), the hearing

Shall be held (as determined by the health care

entity)-

ii.

(i) 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 are

appointed by the entity and are not in direct

economic competition with the physician

involved;

(B) the right to the hearing may be forfeited if the

physician fails, without good cause, to appear;

right—

iy 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,

(iii) to call, examine, and _ cross-examine

witnesses,

(iv) to present evidence determined to be

relevant by the 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.

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).

§11133. Reporting of certain professional review

actions taken by health care entities

(a) Reporting by health care entities. (1) On

physicians. Each health care entity which—

(A) takes a professional review action that

adversely affects the clinical privileges of a

physician for a period longer than 30 days;

(B) accepts the surrender of clinical privileges of

a physician—

(i) while the physician is under an investigation

by the entity relating to possible incompetence or

improper professional conduct, or

(ii) in return for not conducting such an

investigation or proceeding; or

professional society, takes a professional review

action which adversely affects the membership

of a physician in the society, shall report to the

Board of Medical Examiners, in accordance with

section 424(a) [42 USCS §1134(a)], the

information described in paragraph (3).

§11135. Duty of hospitals to obtain information

(a) In general. It is the duty of each hospital to

request from the Secretary (or the agency

designated under section 424(b) [42 USCS

§11134(b)}), on and after the date information is

first required to be reported under section 424(a)

[42 USCS §11134(a)])]—

(1) at the time a physician or licensed health care

practitioner applies to be on the medical staff

(courtesy or otherwise) of, or for clinical

privileges at, the hospital, information reported

under this part [42 USCS §§11131 et seq.]

concerning the physician or practitioner, and

(2) once every 2 years information reported

under this part [42 USCS §§11131 et seq. ]

concerning any physician or such practitioner

who is on the medical staff (courtesy or

otherwise) of, or has been granted clinical

privileges at, the hospital.

Il. STATEMENT OF THE CASE

A. Background Facts

The abuse of peer review mechanisms to achieve

secondary gain at the expense of patients and physicians has

been documented in a variety of contexts. See V. Waite and R.

Walker, “Medical and Surgical Peer Review,” American Journal

of Surgery 168 (July 1994); B. McCormick, “Managed Care

Posing New Liability Risks,” American Medical News, 13 June

1994, 47-8.

The skimpy record below reflects the misery of a

physician who testified before the Select Committee on

Children, Youth and Families of the House of Representatives

of the one hundred and second Congress of the United States.

Dr. Bok described what others also described to Congress,

exploitation of young people and adolescents who were held in

locked mental health treatment facilities until their insurance

was exhausted regardless of their lack of need for this high level

of care.

In recent months the extent of this and similar insurance-

oriented abusive “treatment” programs have become well

known through newspaper exposés.

The lonely whistleblowers who first brought this horrible

situation to the attention of Congress have been blacklisted. In

the absence of any contention their care of patients was

substandard they are routinely denied malpractice insurance

through “peer reviews” about which nothing is told to them,

and/or they are denied practice rights in health maintenance

organizations and hospital staffs without explanation.’

These walking wounded of the battles for decency in the

administration of public health benefits provide grim reminders

to working health care professionals to turn a blind eye to abuse

of patients lest they be initiated into the ranks of the

unemployed.

Denying the implied right of suit under the HCQIA to

obtain court order for peer review conditions outlined in the

HCQIA contributes to wrong side of the health care equation

Physicians who stand up for patients generally find it a

thankless undertaking which frequently results in serious

harm to their professional and personal lives. See

“Managed Care Contracts of Adhesion, etc.” 49 Rutgers L.

Rev. 1397 (1997)

because it discourages primary care physicians from contesting

wrongful administrative practices.

B. Jurisdictional Facts

In his complaint filed September 1, 1996 Dr. Bok alleges

that he applied to respondents for insurance. Dr. Bok

subsequently met with a "professional peer review committee,”

not a "traditional insurance underwriting committee.” The

meeting did not afford Dr. Bok due process. To begin with,

petitioner was not advised that a professional review action

was being undertaken. Due process requirements listed in 42

U.S.C. §11112 were not met.

Paragraph 20 of the complaint alleges respondent is a

creature of the state medical association and "interlocked"

through the medical association with the state licensing board.

Paragraph 20(C) alleges monopolistic power of

respondent to keep licensees from employment, and 4 20(d)

asserts inferentially his "peer review impacts access to hospital

staff practice rights."

Paragraph 24 asserts that appellant is a well-known

“whistle blower” against a fraudulent corporate health care

provider, and the next paragraphs allege a conspiracy to

restrain his right to earn a living.

The complaint goes on to seek an order for fair peer

review pursuant to the due process standards of the HCQIA

listed above in the statutory provisions.

IV. REASONS FOR GRANTING THE PETITION AND

DISCUSSION

A. The Question Presented is Important

The HCQIA has received relatively little judicial

consideration in the dozen years since it was passed, and most

of the cases (which are anti-trust suits) went against the

doctors.

Petitioner argues that to achieve its purpose

(improvement of health care) the HCQIA needs to be

interpreted to authorize a private right of action to affected

physicians who seek fair peer review.

Among health care attorneys it was generally

understood that the HCQIA, ”. . . established federal guidelines

for effective peer review.” See the discussion in 73 North

Dakota Law Review 477, 478 (1997) by Murray G. Sagsveen,

Esq., general counsel for the North Dakota Medical

Association.

Comments in law reviews include, “to safeguard the

reputation of the peer review process and encourage physicians

to respect and participate in the process, the HCQIA

established specific due process requirements that prefessional

peer review must follow.” “The New Rules of Show and Tell,”

etc. 49 Baylor Law Review 607, 611 fn. 16 (1997).

Shortly after the HCQIA's enactment the American

Hospital Association convened a task group of lawyers and

others which issued a fair peer review guide which was

intended to assure compliance with the HCQIA's peer review

standards. So did a committee of the American Bar

Association. Those guides were presented to the district and

circuit courts in a Request for Judicial Notice (Fed. Rules of Ev.

Rule 201) to show the industry’s view that the HCQIA

provided a national framework for due process in peer review.

B. The Circuits Are Divided

Until the Eleventh Circuit Court’s August 15, 1997

opinion there was only a slightly lopsided division among the

few courts which considered this issue. Some found there was

an implied right of action; most did not. The Eleventh Circuit

sided with those who do not find an implied cause of action

relying on Hancock v Blue Cross-Blue Shield of Kansas 21 F.3d

373, 374 (10th Cir. 1994) which held that the purpose of the

HCQIA is “to ensure professional peer review of physician

competence.”

Petitioner contends that the Hancock analysis is

superficial, and it does not take into account the central feature

of the HCQIA which is to establish a very expensive data bank

which must be consulted (§ 11,135) before health care provider

organizations can admit physicians to membership if those

organizations are going to remain eligible to participate in

federally funded health care programs and avoid sanctions.

(See 45 CFR 60.7(c) as to settlements and 60.9(c) as to clinical

privileges.)

a a i,

.. The Decision of the Court of Appeals is Erroneous

Petitioner contends that the Eleventh Circuit Court of

Appeals overlooked and misapprehended the fundamental

purpose of the HCQIA and thus arrived at an erroneous

opinion that it is primarily a device to defend anti-trust

litigation; it is not. The HCQIA is intended to upgrade health

care in America through a central monitoring system that

focuses on doctors and encourages good faith peer review. The

anti-trust qualified immunity is only one segment of this

comprehensive legislation.

V. TESTING A STATUTE FOR IMPLIED REMEDIES

When a federal statute does not expressly provide for a

private cause of action, one may be implied. In Court v Ash

422 U.S. 66, 78 (1975) this court articulated four criteria to

determine if a private cause of action is implied by a federal

statute:

(1) whether a plaintiff is a member of the class

for whose special benefit the statute was

enacted; (2) whether there is any indication of

legislative intent, explicit or implicit, to create or

deny a remedy; (3) whether is would be

consistent with the underlying purposes of the

legislative scheme to imply a remedy; and (4)

whether the cause of action is one traditionally

relegated to state law in an area basically the

concern of the states, so that it would be

inappropriate to infer a cause of action based

solely on federal law.

Petitioner contends that understanding the primary

basis of the HCQIA helps to assess whether the HCQIA implies

a remedy for physicians to obtain court orders to assure a fair

hearing.

VI. ANALYSIS OF THE HCQIA

The purpose of the HCQIA is stated in § 11101 which is

entitled "Encouraging Good Faith Professional Review

Activities." Section 1 thereof discusses the "nationwide

problems” of "increasing occurrence of medical malpractice" and

"the need to improve the quality of medical care" which

“warrant greater efforts than those that can be undertaken by

any individual state." Section 2 speaks of a "national need 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."

iii

Under the HCQIA a huge National Practitioner Data

Bank has been established into which entities which deal with

health care providers are required to deposit reports of various

activities involving physicians including failures to be admitted

to health care provider organizations, and certain medical

malpractice settlements and payments. The HCQIA (§

11,131(c) and the Code of Federal Regulations) establish a

$10,000 civil penalty for failure to report. Section 11132

requires boards of medical examiners to make reports of

revoked or suspended licensees. Section 11133 requires reports

of "health care entities which (A) take[s] a professional review

action that adversely affects the clinical privileges of a

physician for a period of longer than 30 days." Section (C)

requires reporting by professional societies of any act which

“adversely affects the membership of a physician in the

society.”

The health care industry customarily requires

practitioners to maintain malpractice insurance as a condition

of clinical privileges. The loss of such insurance results in loss

of privileges. In fact, this is what occurred in Dr. Bok's case.

Section 11151(1) includes "failing to renew clinical privileges or

membership" as a reportable event.

Section 11135 of the HCQIA imposes a duty on

hospitals “to request from the Secretary” of Health and Human

Services the information in the data bank “(1) at the time a

physician . . . applies to be on the medical staff” and “(2) once

every two years” thereafter.

The HCQIA's legislative history reported in U.S. Code

Congressional and Administrative News, 99th Congress, 2d

Session 1986 at page 6387 notes the existence of two registries,

one maintained by the Federation of State Medical Boards

(FSMB), and the other by the American Medical Association

(AMA), noting that, "the data collection activities described in

this bill would be much more extensive than any that currently

exist. Based on rough estimates provided by the AMA, this bill

could require approximately one million hospital staff member

credential checks per year. In fiscal 1987, it could cost about

$30 million to create the comprehensive data base, to operate

the system, and to respond to credential check inquiries" and

$10 million annually thereafter.

Vil. THE IMPLIED REMEDY OF LITIGATION TO

ENFORCE GOOD FAITH PEER REVIEW

As shown above, the establishment of a National

Practitioner Data Bank which must be consulted before a

physician may be made a medical staff member of a hospital

and the industry's response to the due process components of

the HCQIA imply that the HCQIA must be the national device

to level the peer review playing field. The expense of that huge

sum of money in establishing and running the National

Practitioner Data Bank implies that the data collection system

is generating useful information through a system of fair

procedures. Absent that element of assurance, the Data Bank

must be viewed as an unreliable dust bin containing information

of greater or lesser probity depending on the quality of the

underlying hearing process, but not sufficiently derived from

uniform sources to be a reliable resource for rational decisions.

During the 1986 Congressional debate Representative

Waxman expressed Congress’ desire to grant immunity to fair

peer review but not to monopolistic abuse in these words

addressed to the Ninth Circuit Court of Appeals ruling in

Patrick v Burget 88 F.2d 1498 (9th Cir. 1986) reversed 486 U.S.

94, (1988):* "Bad faith peer review activities as permitted by

the Patrick case could never obtain immunity under [HCQIA]."

(Congressional Record October 17,1986, daily edition H11590

at the foot of the first column). This statement contemplates

the doctor's right to a fair hearing; it supports the implied right

to sue for an order imposing a fair hearing. This Congressional

comment can be read to support the Court v Ash (supra) points

one and two. Several courts have so read Court v Ash in the

HCOIA centext.

Court v Ash factor three calls attention to the national

purpose of the HCQIA -- to provide a due process structure for

results which will be fed into the National Practitioner Data

Bank.

Factor four asks whether due process for data to be

entered in a national system should be governed by a crazy

quilt of 50 sets of state rules about what elements make up a

fair hearing, or whether we will have a single nation-wide

, See Patrick at note 3 condemning conduct which was “shabby,

unprincipled, and unprofessional."

standard.

Factors three and four suggest the importance of

nationally uniform standards of due process so that the data

reported to the National Data Bank is more or less uniform and

therefore reliable and useful to achieve the HCQIA's purpose.

VIII. THE PURPOSE OF THE HCQIA IN CONTEXT

When analyzing the legislative purpose of the HCQIA

the court should consider that Congress was aware of the

irregular existing pattern of 50 state approaches to fair peer

review. (See page 19 hereof.)

Most states declined to regulate the private

administrative due process of health care organizations through

legislation before New York enacted Public Health Law § 2801-

b in 1972, and few have tried since. (Exceptions include

California, Colorado, New Jersey, Ohio, Pennsylvania, Virginia

and Washington.) Former Texas Rev. Civ. Stat. Ann. art. 4437F,

section 17(c), a 1987 Texas statute which required "procedural

due process" for each applicant for medical staff membership,

was repealed in 1989.

Before enactment of HCQIA, scant concern was given to

the impact on the public of the system which permits

cartelization of medicine. For example, in Illinois, judicial

review of private hospital decisions to terminate or curtail

existing medical staff privileges was limited by the “rule of non-

review" except to determining whether such decisions were

rendered in compliance with the hospital's own bylaws. See

Pulido v St. Joseph Memorial Hospital 547 N.E. 2d 1383, 1388

(1989).

The HCQIA’s legislative history tells of the committee's

deep understanding that there is a lack of uniformity among the

state law rules of due process in this field:

The Committee is aware, for example, that some

courts have already carefully spelled out

different requirements for certain professional

review activities or actions, such as procedures

for decision regarding applicants for clinical

privileges at a hospital. In those situations,

compliance with applicable law should satisfy

the "adequacy" requirement even where such

activities or actions require different or fewer due

process rights than the ones specified under

subsection 102(b). In any case, it is the

Committee's intent that physicians receive fair and

unbiased review to protect their reputations and

medical practices. The Committee intends that the

hearing panel or officer be impartial and fair in

evaluating a physician's behavior. In order to

ensure that reviews of, physicians pertain only to

quality of care, the Committee has specified that

members of the hearing panel, or the hearing

officer, cannot be in direct economic competition

with the physician-respondent. The Committee

recognizes that in many cases, such as small

hospitals or group practice, hospitals or

physicians in rural areas, or situations involving

highly specialize work, this requirement may

present some difficulty. In particular, it may not

be feasible to find physicians who are of the

same specialty as the respondent but who are

not in direct in economic competition.

Nevertheless, the Committee expects the

professional review body to make every

reasonable effort to find appropriate officers or

members of the panel, even if this requires

bringing in reviewers from out of town or using

physicians of different specialty.

(1986 U.S. Code Cong. & Adm. News at 6393. Emphasis added.)

Notice how comfortably this staternent fits the Court _v_ Ash

(supra) criteria.

The title of the act tells its purpose, “Health Care

Quality Improvement Act." The entire thrust of the statute is to

benefit society through incentives to the heaith care industry for

development of ethical peer review. The reason was succinctly

stated in the California opt-out statute which provides a few

more due process elements than the HCQIA:

Peer review which is not conducted fairly results

in harm both to patients and healing arts

practitioners by limiting access to care.

(California Bus. & Prof. Code §809(a)(4))

In discussing the need for summary suspension of

practice rights exceptions when there is a crisis which demands

"quick action" to avoid immediate health hazards the

Congressional Committee again returns to its due process

concern:

these exceptions are not meant to provide a back

door for harassment of physicians through

repeated short term suspensions or interminable

investigations never leading to a professional

review action.

(1986 U.S. Code Cong. & Adm. News at 6394)

VII. STATUTORY INTERPRETATION

This court has noted, "In expounding a statute, we must

not be guided by a single sentence or member of a sentence, but

look to the provisions of the whole law, and to its object and

policy.’ [Citations.] Our objective in a case such as this is to

ascertain the congressional intent and give effect to the

legislative will." Philbrook v. Glodgett 421 U.S. 707, 713 (1975).

ee,

Further, in interpreting a statute, this court has emphasized the

importance of avoiding: “absurd results" (United States _v.

Turkette 452 U.S. 576, 580 (1981)); "an odd result" (Public

Citizen v. Department of Justice 491 U.S. 440, 454 (1989)); or

“unreasonable results whenever possible." (American Tobacco

Co. v. Patterson 456 U.S. 63, 71 (1982); Commissioner v.

Asphalt Products Co., Inc. 482 U.S. 117,121(1987)) In Griffin v.

Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982), this court

stated: "[I]n rare cases the literal application of a statute will

produce a result demonstrably at odds with the intentions of its

drafters, and those intentions must be _ controlling...

[Citations.]"

It would show little respect for the Congress were courts

to suppose that the lawmakers meant to enact an irrational

scheme. Cf. John Hancock Mut. Life Ins. Co. v Harris Trust and

Sav. Bank 510 U.S. 86 (1993). The court's examination of

statutory language is "guided not by a single sentence or member

of a sentence, but look[s] to the provisions of the whole law,

and to its object and policy." (Internal quotations omitted.

Quoting Pilot Life Ins. Co. v Dedeaux 481 U.S. 41, 51 (1987).

Hancock (supra) is a wisp of an opinion about the length

of the Eleventh Circuit's August 5, 1997 memorandum opinion.

Neither digs into the context which gave rise to the HCQIA or

expresses the legislative history. Hancock relies on Goldsmith v

Harding Hosp. Inc. 762 F. Supp. 187, 190 (S.D. Ohio 1991), but

neither opinion discusses the HCQIA's stated purpose of

"Encouraging Good Faith Professional Review Activities,” and

the title of § 11101, "Encouraging Good Faith Review.”

The harm to physicians of unfair peer review is well

known to the courts and to Congress. It was in response to the

unfair peer review reported in Patrick v Burget (supra) that the

HCQIA was enacted.

The HCQIA was drafted by a committee which

reviewed the then-existing repositories of peer review data and

found them inadequate.

In Addis v Holy Cross, etc. 88 F.3d 482 (7th Cir. 1996)

the court expresses a broader understanding of the HCQIA as

"a commitment to the idea that government has a role in

promoting responsible self regulation by the private sector’

(emphasis added, at 487). The Addis court correctly viewed

the big picture, and it focused on the "reporting requirements” as

one of the elements of a legislative scheme of “incentives...

designed to encourage doctors to engage in meaningful peer

review." (at 485). A private right of action to enforce the

HCQIA's due process requirements would further "encourage...

meaningful peer review."

Gill v Mercy Hospital 199 Cal. App. 3d 889, 903; 245

Cal. Rptr. 304, 312 (1988) correctly describes the HCQIA's

function saying it

established a national clearing house of medical

peer review and malpractice information and

provides qualified immunity from certain federal

and state laws for peer review actions taken in

good faith.

In Pagano _v Oroville Hospital 145 F.R.D. 683, 686

(1993) the court was evidently of the belief that there is an

implied right of action to require a health care entity to observe

the HCQIA's peer review due process provisions.

In Stevenson et al. v Howley, MD 95-2619 Lexis 27941

(4th Cir. Oct. 29, 1996) patients sued Hilton Head Hospital

alleging their physician was subjected to “unfair and

unreasonable peer review.” A compromise restored their doctor

to the hospital staff. The implied right of action was not

criticized. While this unpublished case is not cited as

precedent, it suggests that the 4th Circuit supports the implied

cause of action to enforce the HCQIA's due process

requirements.

A context review invites the court to contrast the pre-

HCQIA standardless peer review process with the post-

HCQIA national due process model of the National Practitioner

Data Bank collecting roughly uniformly sifted data compared to

the unstructured data registries that pre-exist the HCQIA.

X. CONCLUSION

Managed care health systems abuses are reported in

almost every edition of our newspapers. Doctors are at the

focus of the conflict between health care companies and their

patients. In the case at bar a “whistle blower” doctor is being

denied fair peer review as a warning to other physicians to go

along with the executives who make business decisions about

health care often against the best interest of the patients. If the

physician has the implied right to sue for a fair hearing the

objective of the statute can be served. That right to sue will

result in a better health care delivery system because the

doctors will enjoy due process protection when they stand up

for the rights of patients.

Improvement of health care quality in America begins

with a statute designed to help doctors obtain fair peer review.

The HCQIA combines a carrot and stick approach to achieving

fair peer review. It carries an implied right to sue for

enforcement of its due process provisions. How much of the

economic waste, human misery and fraud reported in the press

recently in connection with HCA/Columbia would never have

occurred if the HCQIA had been correctly interpreted early on?

How much similar future harm can be avoided by a clear

statement by this court?

XI. PRAYER

Petitioner prays that this matter be accepted by the

court for the purpose of bringing all the benefits of the HCQIA

to the American public as taxpayers and as patients beginning

with due process protection for doctors who stand at the

public’s portal to the health care delivery system.

Respectfully submitted,

Jerome Berg

Counsel of Record

1255 Post Street, Suite 606

San Francisco,

California 94109

(415) 775-7751

Counsel for Petitioner

App. 1

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

Duard BOK, M.D., )

Plaintiff, )

) CIVIL ACTION NO.

Vv. ) 95-D-1188-E

)

MUTUAL ASSURANCE, INC., )

Defendant. )

JUDGMENT

In accordance with the attached memorandum opinion,

it is CONSIDERED, ORDERED and ADJUDGED that

defendant Mutual Assurance, Inc.’s motion to dismiss be and

the same is heeby GRANTED in favor of said defendant and

against plaintiff Duard Bok, MD, and that the plaintiff take

nothing by his said suit.

It is further CONSIDERED and ORDERED that all

costs herein incurred be and the same are hereby taxed against

the plaintiff, for which let execution issue.

DONE this 22nd day of February, 1996.

/s/ltra De Ment

UNITED STATES DISTRICT JUDGE

App. 2

APPENDIX B

917 F. Supp. 788

Duard BOK, M.D., Plaintiff,

MUTUAL ASSURANCE, INC., Defendant.

Civil A. No. 95-D-1188-E.

United States District Court,

M.D. Alabama,

Eastern Division.

Feb. 22, 1996.

MEMORANDUM OPINION

DE MENT, District Judge.

Before the court is the defendant Mutual Assurance,

Inc.'s motion filed October 2, 1995, to dismiss the above-styled

case. The plaintiff, Duard Bok, M.D., failed to respond in

opposition. After careful consideration of the arguments of

counsel, the relevant case law and the record as a whole, the

court finds that the defendant's motion is due to be granted.

STANDARD OF REVIEW FOR MOTION TO DISMISS

Pursuant to Rule 12(b)(6) of the Federal Rule of Civil

App. 3

Procedure, a defendant may move to dismiss a complaint on

the ground that the plaintiff has failed to state a claim upon

which relief may be granted. A Rule 12(b)(6) motion questions

the legal sufficiency of a complaint; therefore, in assessing the

merit of a Rule 12(b)(6) motion, the court must assume that all

the factual allegations set forth in the complaint are true. See,

e.g., United States _v. Gaubert, 499 U.S. 315, 327, 111 S.Ct.

1267, 1276, 113 L.Ed.2d 335 (1991); Powell v. Lennon, 914

F.2d 1459, 1463 (11th Cir.1990). Moreover, all factual

allegations are to be construed in the light most favorable to the

plaintiff. See e.g., Sofarelli v. Pinellas County, 931 F.2d 718,

721 (11th Cir. 1991); see also Brower v. County of Inyo, 489

U.S. 593, 598, 109 S.Ct. 1378, 1382, 103 L.Ed.2d 628 (1989).

On a motion to dismiss for failure to state a claim upon

which relief may be granted, the movant "sustains a very high

burden."’ Jackam v. Hospital Corp. of America Mideast, Ltd.,

800 F.2d 1577, 1579 (11th Cir. 1986) (citing Currie v. Cayman

Resources Corp., 695 F.Supp. 1364,1376 (N.D.Ga.1984)). The

Court of Appeals for the Eleventh Circuit has held, “motions to

dismiss for failure to state a claim should be denied unless it

appears beyond doubt that the plaintiff can prove no set of

facts in support of its claims." Jackam, 800 F.2d at 1579

(quoting Bracewell v Nicholson Air Servs., Inc., 680 F.2d 103,

Rule 12(b)(6) of the Federal Rules of Civil Procedure permits

a party to plead or move for dismissal of a complaint if that

- complaint fails to state a claim upon which relief may be

granted.

iia

App. 4

104 (11th Cir.1982)); see also Hishon v. King & Spalding, 467

U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984).

The court also stresses that on a motion to dismiss for

lack of subject matter jurisdiction, Rule 12(b)(1) of the Federal

Rules of Civil Procedure, the nonmoving party has the burden

of showing that it properly invoked the court's jurisdiction.

Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (Sth

Cir.), cert. denied, 449 U.S. 953, 101 S.Ct. 358, 66 L.Ed.2d 217

(1980).? In ruling on the motion, the court is to “consider the

allegations of the complaint as true.” Williamson v. Tucker, 645

F.2d 404, 412 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct.

396, 70 L.Ed.2d 212 (1981).

DISCUSSION

The plaintiff brings this action pursuant to the Health

Care Quality Improvement Act of 1986 ("HCQIA"), 42

U.S.C.A. § 11101 et seq. As such, the plaintiff alleges in his

complaint that this court has federal question jurisdiction over

claims brought under 42 U.S.C.A. § 11112. See 28 U.S.C. §

1331.2 However, the defendant contends that the HCQIA does

not provide to the plaintiff a private cause of action. Therefore,

; Decisions of the former Fifth Circuit rendered prior to

October 1, 1981, constitute binding authority in the Eleventh

Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th

Cir.1981) (ern banc).

, Section 1331 provides, “[t]he federal district courts shall

have original jurisdiction of all civil actions arising under

the ... laws ... of the United States.” 28 U.S.C. § 1331.

App. 5

the defendant contends not only that the plaintiff has failed to

state a claim upon which relief may be granted, but also that

the court lacks subject matter jurisdiction.

In a case factually similar to this case, the Tenth Circuit

held that the HCQIA did not create a private cause of action in

favor of a physician who was allegedly denied the right to full

representation and participation of counsel in a peer review

proceeding. Hancock v Blue Cross-Blue Shield of Kansas, 21

F.3d 373 (10th Cir.1994). In Hancock, the plaintiff-physician

“based his action on a claim of federal question jurisdiction

arising under the [HCQIA]...." Id. The plaintiff-physician, as in

this case, specifically claimed he was denied the protections

guaranteed under the HCQIA In affirming the district court's

dismissal for lack of subject matter jurisdiction, the Tenth

Circuit weighed the factors outlined in Cort v Ash, 422 US. 66,

95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), and concluded that

“Congress did not intend to create a cause of action for the

benefit of physicians to enforce provisions of the HCQIA.™ Id.

' As succinctly summarized in Hancock, "the Supreme Court in

(Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975)]

noted that there are four factors relevant to the

determination of whether a private cause of action may be

implied from a statute that does not expressly provide for

one . . .:

(1) whether the plaintiff is a member of the

class for whose special benefit the statute

was enacted; (2) whether there is any

indication of legislative intend, explicit or

implicit, to create or deny a remedy; (3)

whether it would be consistent with the

SE Ss cae eS nT Se Ne ee

App. 6

at 374. As such, the court reasoned that an implied cause of

action does not exist for physicians under the HCQIA Id. at

37475. In fact, other federal district courts which have

considered this issue have found that the HCQOIA does not

create a cause of action for physicians. See Doe v. United

States Dep't of Health and Human Servs., 871 F.Supp. 808,

812 (E.D.Pa.1994), aff'd, 66 F.3d 310 (3d Cir.1995); Goldsmith

v Harding Hosp., Inc., 762 F.Supp. 187, 190 (S.D.Ohio 1991)

("A weighing of the factors set forth in Cort v. Ash leads to the

conclusion that Congress did not intend to create a cause of

action for the benefit of physicians to enforce the provisions of

§ 11112 or to sue under other provisions of the HCQIA").

The court is persuaded by the reasoning set forth in the

aforementioned authority and finds that none of the relevant

Cort v. Ash factors weighs in favor of an implied cause of

action in this case. As such, the court finds that the HCOQIA

creates no cause of action for benefit of physicians to enforce

its provisions. Consequently, the court finds that the HCQIA

does not provide the plaintiff a private cause of action, and

therefore, the court lacks subject matter jurisdiction.

underlying purposes of the legislative

scheme to imply a remedy; and (4) whether

the cause of action is one traditionally

relegated to state law in an area basically

the concern of the states, so that it would be

inappropriate to infer a cause of action based

solely on federal law."

21 F.3d at 374 (citations omitted).

App. 7

Accordingly, the defendant's motion to dismiss is due to

be granted. A judgment in accordance with this memorandum

opinion will be entered separately.

App. 8

APPENDIX C

119 F.3d 927

Duard BOK, M.D., Plaintiff-Appellant,

MUTUAL ASSURANCE, INC., Defendant.

No. 96-6278

Non-Argument Calendar

United States Court of Appeals,

Eleventh Circuit

Aug. 15, 1997.

PER CURIAM:

The question presented in this appeal is whether or not

the Health Care Quality Improvement Act of 1986 (HCQIA),

42 U.S.C. § 1101 et .seq., provides for a private cause of action

to a physician who alleges an insurance company violated its

provisions when it refused to provide him with medical

malpractice insurance after a peer-review proceeding. We find

that the Act does not provide for a private cause of action and

affirm the dismissal of the complaint.

In his complaint, Bok alleged that Mutual Assurance,

Inc., violated the HCQIA’s due process requirements when it

refused to provide him with medical malpractice insurance

App. 9

after a peer-review proceeding. More specifically, Bok

complained that Mutual Assurance did not, among other

things, provide him with notice prior to his peer-review hearing

or advise him that he could call witnesses or present evidence

at the hearing.

Mutual Assurance filed a motion to dismiss,

Fed.R.Civ.P. 12(b)(6), arguing that the HCQIA did not grant

Bok a private right of action to sue it. Mutual Assurance relied

on, among other cases, an opinion issued by the Tenth Circuit,

Hancock v. Blue Cross-Blue Shield of Kansas, 21 F.3d 373

(10th -Cir. 1994). Bok did not file a brief in opposition to

Mutual Assurance's motion.

The district court, in a memorandum opinion reported

at Bok v Mutual Assurance, Inc., 917 F.Supp. 778, 779-80

(M.D.Al. 1996), agreed with Mutual Assurance and relied in

part on Hancock to conclude that the HCQIA did not create an

express or implied cause of action for Bok to complain about

Mutual Assurance's peer-review procedures. The court

dismissed Bok's complaint.

Bok argues that the HCQIA implies a private right of

action for his suit because components of the HCQIA "level the

peer review playing field" by "generating information which is

based on fair procedures." Bok also reasons that Congress

passed the HCQIA to benefit physicians like him because one

section of the act is entitled "Encouraging Good Faith Peer

Review.” Mutual Assurance argues the district court correctly

concluded that the HCQIA did not give Bok an implied cause

pea here eeeecie Nerve ereten se Nag err cere ne AN CRE EERE TR

App. 10

of action.

[1] When legislation does not provide expressly for a

cause of action for individual plaintiffs, the legislation must

provide an implied cause of action in order for individual

plaintiffs to be able to sue under the legislation. See Cort_v.

Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26

(1975). In Cort, 422 U.S. at 78, 95 S.Ct. at 2087-88, the

Supreme Court formulated four factors for determining whether

an implied cause of action exists: 1) whether the plaintiff is a

member of the class for whose special benefit the legislation

was enacted; 2) whether there is any indication of explicit or

implicit legislative intent to create a remedy under the act; 3)

whether it would be consistent with the underlying purposes of

the legislative scheme to imply a remedy; and 4) whether the

cause of action is one traditionally relegated to state law.

[2] In the medical profession, peer review is a "process

by which physicians and hospitals evaluate and discipline staff

doctors[.]" Bryan v. James E. Holmes Regional Medical Center,

33 F.3d 1318, 1321 (11th Cir.1994), cert. denied, 514 U‘S.

1019, 115 S.Ct. 1363, 131 L.Ed.2d 220 (1995). The "HCQIA

grants limited immunity, in suits brought by disciplined

physicians, from liability for money damages to those who

participate in professional peer review activities." Id. The

HCQIA thus provides that, if the peer review action "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." Id. at

App. 11

1321-22.

In Hancock, the plaintiff-physician sued an insurer

alleging that a peer-review panel violated the HCQIA's due-

process requirements when it decredentialized him. 21 F.3d at

374. The Hancock court first found that the HCQOIA did not

expressly create a cause of action in favor of the physician. Id.

The court next concluded that the HCQIA did not create an

implied right of action because it was not enacted for the

benefit of physicians subject to peer review, but instead "to

ensure professional peer review of physician competence[.]" /d.

In reaching this conclusion, the court specifically cited the

relevant factors from Cort, 422 U.S. at 78, 95 S.Ct. at 2087.

Hancock, 21 F.3d at 37475.

[3] This Court reviews de novo the district court's

conclusions of law. Jones v Childers, 18 F.3d 899, 904 (11th

Cir.1994).

[4] Although this Court has not answered whether the

HCQIA creates a cause of action for a physician to challenge

the procedures used by a peer-review panel, we find the

reasoning of the Tenth Circuit in Hancock persuasive and

adopt it. We agree, as the Hancock court concluded, that

Congress did not pass the HCQIA with the intent of benefiting

physicians such as Bok. Id. at 374-75. A claim such as Bok's

thus fails entirely to satisfy the first Cort factor. See Cort, 422

U.S. at 78, 95 S.Ct. at 2087-88. More importantly, a weighing

of the Cort factors also argues against finding an implied cause

App. 12

of action’ in the HCQIA. Hancock, 21 F.3d at 374-7a.

[5] As a final note, Bok discusses two matters he did

not raise in his filings to the district court: (1) his right to amend

his complaint; and (2) his right to discovery. Generally, this

Court will not consider issues that the appellant failed to raise

below. See Narey v. Dean, 32 F.3d 1521, 1526-27 (11th

Cir.1994). Although there are exceptions to this rule, none of

them apply in this case. See id.

Concluding that the HCQIA does not provide for a

private cause of action, WE AFFIRM the judgment of the

district court.

There clearly is no express cause of action in the legislation.

App. 13

APPENDIX D

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Filed December 12, 1997

Duard BOK, M.D.,

Plaintiff-Appellant,

versus

MUTUAL ASSURANCE, INC.,

Defendant-Appellee.

On Appeal From The United States District Court For The

Middle District Of Alabama

ON PETITION(S) FOR REHEARING AND SUGGESTION(S)

OF REHEARING EN BANC

(Opinion sant Gir, 19... Fag -).

Before: ANDERSON and BLACK, Circuit Judges, and FAY,

Senior Circuit Judge.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no member of

this panel for other Judge in regular active service on the Court

iit sss

App. 14

having requested that the Court be polled on rehearing en banc

(Rule 35, Federal Rules of Appellate Procedure; Eleventh

Circuit Rule 35-5), the Suggestion(s) of Rehearing En Banc are

DENIED.

ENTERED FOR THE COURT:

/s/

UNITED STATES CJ® “UIT JUDGE

titan te ee eee ee ey ee Se

epivcnseeNee*

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.