Amicus Curiae Brief — Poliner v. Texas Health Health Systems Systems (No. 08-543)

Supreme Coun, US

4 ) NOV 24 2008

No. 08-543 OFFICE OF THE CLERK

IN THE

Supreme Court of the Anited States

LAWRENCE R. POLINER, M.D., and

LAWRENCE R. POLINER, M.D., P.A.,

Petitioners,

TEXAS HEALTH SYSTEM, doing business as

PRESBYTERIAN HOSPITAL OF DALLAS, TEXAS, a Texas

non-profit corporation, and JAMES KNOCHEL, M.D.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF OF AMICUS CURIAE ASSOCIATION OF

AMERICAN PHYSICIANS AND SURGEONS, INC.

IN SUPPORT OF PETITIONERS

ANDREW L. SCHLAFLY

939 OLD CHESTER ROAD

FAR HILLS, NJ 07931

(908) 719-8608

Counsel for Amicus

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20002

i

QUESTIONS PRESENTED

The Healthcare Quality Improvement Act of

1986, §402 et seg., 42 U.S.C. §§ 11101 et seg.

(2000) (‘“HCQIA”) establishes limited immunity

from money damages for professional review ac

tions taken (1) in the reasonable belief that the

action was in 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 and after meeting the requirements

of paragraph (3). A professional review action is

presumed to have met these standards unless re-

butted by a preponderance of the evidence. 42

U.S.C. § 11112(a) (2002).

The questions presented are:

1. Can a court exclude all evidence of subjective

motives (an entire category of evidence) when it

considers whether a defendant possessed a “rea-

sonable belief’ as required for HCQIA immunity

under subsection (1) and (4), when such exclusion

effectively:

a) Usurps the fact-finding role of the jury?

b) Renders state peer review immunity

statutes meaningless?

il

c) Transforms the qualified immunity in-

tended by Congress into absolute immuni-

ty?

2. What are the categories of evidence that can

be considered in a court’s determination of

whether plaintiff's evidence is sufficient to rebut

the statutory presumption?

iil

TABLE OF CONTENTS

Pages

QUESTIONS PRESENTED. ..........00..cccccccescessosscesevseees i

Te Sa Ct iikas ee viesris heart imcmeirnnre ill

TAGs COP PAT TR re vnnesncconecccoesececssesvccssevooensee Vv

INTEREST OF AMICUS CURIAL..........:...000cccscsesees: 1

SUMMARY OF ARGUMENT. ......000..ceccccccccsseccesesseeses 2

FE itech evtineediceecsacrebd eae 5

I. THE FIFTH CIRCUIT'S RELIANCE ON ITS OWN

(UNTRAINED) VIEW OF UNREPRESENTATIVE

MEDICAL CASES, WHICH WERE PROVEN TO

BE THE PRODUCT OF BAD FAITH, IS

PRECISELY WHAT HCQIA PROHIBITS................065 7

II. HCQIA’S REQUIREMENT OF A “REASONABLE

BELIEF” IN FURTHERING QUALITY HEALTH

CARE DOES NOT REQUIRE EXCLUSION OF ALL

EVIDENCE OF TAD FATT, ...050.0-.nccvesseosecsesevescseves- 12

A. The Plain Meaning of HCQIA Requires

Subjective Belief as a Condition of

TN oo ican ae 13

B. HCQIA's Legislative History Does Not

Support Excluding and _ Ignoring

Subjective Belief in Connection with

SRR nO RE TO RMN PCR 14

C. "Reasonable Belief" Must Include a

Subjective Element to Avoid

Constitutional Difficulties .........00..0000.0.... 17

iV

II]LEXTENDING IMMUNITY TO IMPROPER

MOTIVES IN PEER REVIEW IS HAVING A

CATASTROPHIC EFFECT ON THE PUBLIC

I 9 ass Fae A) Oot Oe es ee, 18

CA PIC EATEN» cessneseseeiessvinnes er me IES iene ntys 20

v

TABLE OF AUTHORITIES

Pages

Cases

Austin v. McNamara, 979 F.2d 728 (9th Cir.

IE fe atsicbnccescmeiastdadancnmaaras passim

Bate Refrigerating Co. v. Sulzberger, 157

2 ESR Receieretounrnr 9 ten mtnteeee ame 7

Bender v. Suburban Hosp., Inc., 758 A.2d

1090 (Md. Ct. Spec. App. 2000), cert. de-

nied, 362 Md. 34, 762 A.2d 968 (2000)........... 17

Bryan v. James E. Holmes Reg. Med. Ctr., 33

F.3d 1318 (11t» Cir. 1994), cert. denied, 514

CS. eee a ee 14

Edward J. DeBartolo Corp. v. Florida Gulf

Coast Building & Construction Trades

Council, 485 U.S. 568 (1988) ou... 18

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)...12

Packard Motor Car Co. v. NLRB, 330 U.S. 485

RAR Ee NONE A CNT PSION 12

Poliner v. Texas Health Sys., 537 F.3d 368

Pe Rs BI sinecpicssstcacnncccssuncaeetcnan ieee passim

Public Citizen v. United States Dep’t of Jus-

tice, 491 U.S. 440 (1989) ...0.... eee eee 17-18

Singh v. Blue Cross/Blue Shield of Mass.,

Inc., 308 F.3d 25 (1st Cir. 2002) ..............ee. 14

Stenberg v. Carhart, 530 U.S. 914 (2000)............ 2

Sugarbaker v. SSM Health Care, 190 F.3d

905 (8th Cir. 1999), cert. denied, 528 U.S.

eR nO a aN leaner sere ter oescw TI HENNE: 14

Unexcelled Chemical Corp. v. United States,

ee Te oo iccrhirntcdabiioennee 12

United States v. Sullivan, 332 U.S. 689

RD vane ec iG een 12

vi

Statute and Legislative History

42 U.S.C. § 11112(a)(1) (HCQIA) ............... passim

1986 Code Cong. & Admin. News 6392-98 ........ 15

H.R. Rep. No. 903, 99th Cong., 2d Sess. 10....... 15

Articles and Treatise

Roland Chalifoux, Jr., M.D., “So What Is a

Sham Peer Review?’, 7 Medscape General

Medicine (No. 4) 47 (2005) .....ecccccecceessceseeeeees 19

Jeff Chu, “Doctors Who Hurt Doctors,” Time

EE | Sa a ee ee 19

Lawrence Huntoon, M.D., Ph.D., “Sham Peer

Review: The Unjust Objective Test,” 12

Journal of American Physicians and

Surgeons 100 (Winter 2004) .............ccccceeeseeees 19

John F. Manning, “What Divides Textualists

from Purposivists?,” 106 Colum. L. Rev. 70

a a eneean LSM et methane VG NIPa cera 14

John Minarcik, M.D., “Sham Peer Review: a Pa-

thology Report,” 9 Journal of American Physi-

cians and Surgeons 121 (Winter 2004) .......... 19

Caleb Nelson, “What Is Textualism?,” 91 Va. L.

Ek aT eR SIT 14

William Parmley, “Clinical Peer Review or Com-

petitive Hatchet Job,” 36 Journal of the Amerr-

can College of Cardiology 2347 (2000) ........... 19

Anthony W. Rodgers, “Comment: Procedural Pro-

tections During Medical Peer Review: A Rein-

terpretation of the Health Care Quality Im-

provement Act of 1986,” 111 Penn St. L. Rev.

DGTP BE ons sie cssseisvsnssassdesacacnceiansesieree 16

Norman Singer, Sutherland’s Statutes and Sta-

tutory Construction 45.11 (5th ed. 1992)....... 18

Vil

William Summers, “Sham Peer Review: A Psy-

chiatrist’s Experience and Analysis,” 10 Jour-

nal of American Physicians and Surgeons 125

I I iicticiiiantenecnmnretsiscetdicniiees 19

David Townsend, “Hospital Peer Review Is a

Kangaroo Court,” Medical Economics 133 (Feb.

I ciiiisissaaascacldsichaiedkncascnmiinariaiie aiaiuanadh ec asils wibes 19

Steve Twedt, “The Cost of Courage: How the

Tables Turn on Doctors,” Pittsburgh Post-

Gazette Al (Oct. 26, 2003) ...........cecceeceeeeee cence 18

Gail Weiss, “Is Peer Review Worth Saving?’,

Medical Economics (Feb. 18, 2005) ............... 18

John Zicconi, “Due Process or Professional Assas-

sination?”, Unique Opportunities (March/April

i eticicinciveessalcsciaede eae eae 18-19

Internet

http://www.memag.com/memag/article/articleDet

ail.jsp?id=147405 (viewed 11/20/08) .............. 18

http://www.post-

gazette.com/pg/03299/234499.stm (viewed

Si ohana eee 18

http://www.jpands.org/vol9no4/minarcik.pdf

CU FTI seincicisisses orccvnseviccoratemnacons 19

http://www.jpands.org/voll0no4/summers.pdf

CREE FINE sxnisniseeimccbinaitaitadad slerccacinens 19

http://www.jpands.org/vol12no4/huntoon.pdf

Ro Se isso cktcdesrcrinadeccn 19

http://www.uoworks.com/pdfs/feats/PEERREVIE

W.pdf (viewed 11/20/08) ....:............cccceseceesseree 19

No. 08-543

IN THE

Supreme Court of the United States

LAWRENCE R. POLINER, M.D., and

LAWRENCE R. POLINER, M.D., P.A..,

Petitioners,

TEXAS HEALTH SYSTEM, doing business as

PRESBYTERIAN HOSPITAL OF DALLAS, TEXAS, a Texas

non-profit corporation, and JAMES KNOCHEL, M.D.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

INTEREST OF AMICUS CURIAP

The Association of American Physicians and

Surgeons, Inc. (“‘AAPS”), founded in 1943, is a non-

profit, national group of thousands of physicians.

' This brief is filed with the written consent of all parties, with

timely notice provided in compliance with Rule 37.2(a) of the

Supreme Court of the United States. Pursuant to its Rule 37.6,

counsel for amicus curiae authored this brief in whole, and no

counsel for a party authored this brief in whole or in part, nor

did any person or entity, other than amicus, its members, or its

counsel make a monetary contribution to the preparation or

submission of this brief.

2

AAPS has members who have suffered from bad faith

peer review by hospitals, also known as “sham peer

review, as retaliation for practicing innovative medi-

cine or standing up for patients. In many cases the

sham peer reviews are initiated because a talented

physician posed a competitive threat to colleagues

who are influential at the hospital.

AAPS is dedicated to defending the practice of

private and ethical medicine so that physicians may

best serve their patients without interference by

third parties. AAPS has filed amucus curiae briefs in

numerous cases before the United States Supreme

Court and federal Courts of Appeals, and its submis-

sions have been cited in opinions. Submissions by

AAPS have been cited by Justices on this Court. See,

e.g., District of Columbia v. Heller, 128 8. Ct. 2783,

2860 (2008) (Breyer, Stevens, Souter and Ginsburg,

JJ., dissenting); Stenberg v. Carhart, 530 U.S. 914,

933 (2000).

The issues presented in this case are of national

importance, affecting virtually every hospital in the

nation, every physician at those hospitals, and every

one of their patients. Amucus has a direct and vital

interest in these issues presented based on the harm-

ful effect on the practice of medicine and the quality

of patient care that results from judicially created —

and statutorily unjustified — immunity for bad faith

peer review.

SUMMARY OF ARGUMENT

The decision below is the latest — and most sweep-

ing — of lower court rulings that increasingly misin-

terpret the federal statute governing hospital peer

review known as The Healthcare Quality Improve:

3

ment Act of 1986, §402 et seg., 42 U.S.C. §§ 11101 et

seq. (2000) (“HCQIA”). These decisions, and particu-

larly the Fifth Circuit opinion below, substitute their

(untrained) medical judgment and write the “reason-

able belief’ requirement of HCQIA out of the statute

entirely. Review by this Court is essential to restore

the plain meaning of “reasonable belief” to the federal

otatute.

The Fifth Circuit below opined at length about its

own medical view of five cases handled by cardiolo-

gist Petitioner Lawrence Poliner, M.D., in reliance on

the bad faith selection and presentation of these cas-

es. In fact, there was nothing improper about Peti-

tioner’s care in any of these five cases, and the mi-

scharacterization of medical cases is precisely what

HCQIA prohibits. Respondents themselves had no

genuine concern about these cases, as confirmed by

the findings of the trial court based on exhaustive

testimony. HCQIA requires a genuine concern or

“reasonable belief’ before smearing a physician, in

order to prevent precisely the miscarriage of justice

that occurred here. Dr. Poliner was absolved by the

hospital of anything improper in these cases, and

HCQIA precludes trumping up spurious charges to

gain a competitive advantage. This Petition starkly

illustrates the growing misapplication of HCQIA, and

presents the best opportunity for this Court to correct

it.

The Fifth Circuit ruled that evidence of malice

and bad faith should be excluded from legal chal-

lenges to peer review, while simultaneously relying

on the five medical cases selected and presented

through malice and bad faith. Obviously cases se-

lected and analyzed through bad faith are not credi-

ble evidence of the skills of a physician. It is illogical

4

to exclude overwhelming evidence of bad faith and

then insist on drawing conclusions from the product

of that same bad faith. HCQIA expressly prohibits

this unjustified approach, yet that is what the Fifth

Circuit opinion and Respondents use as a legal stan-

dard.

In fact, evidence of malice and bad faith is a cen-

tral element of the standard set by HCQIA, and im-

munity properly attaches to a peer review committee

only if it acts in a “reasonable belief’ of furthering

quality patient care. See HCQIA, 42 U.S.C. §

11112(a)(1). The phrase “reasonable belief’ in the

statute could not be clearer. The “belief’ in improv-

ing health care must exist - as opposed to bad faith -

and it must be “reasonable”. Immunity exists only if

there is (i) a belief that patient care is being improved

and (ii) such belief is reasonable. Immunity must not

attach if either element is lacking. This statutory

immunity is more than adequate for revoking the

privileges of negligent physicians, and federal law

does not support the wrongful destruction of a physi-

cian’s career under the guise of peer review.

The precedent below, in giving hospitals nation-

wide a blank check to engage in malicious conduct, is

untenable. The casualty is our nation’s medical sys-

tem and its ability to protect life, foster innovation,

and benefit from competition. Physicians cannot in-

novate or speak out for patient care when it could

cost them their career at the hands of a judicially pro-

tected bad faith peer review. Numerous articles, law-

suits and injustices including the case at bar are

compelling illustrations of how hospitals exploit their

immunity for sham peer review to intimidate or elim-

inate good physicians.

5

In this case the trial court found overwhelming

evidence of bad faith in pressing a half-dozen cases

against Petitioner, and the Fifth Circuit found no ba-

sis for overruling that central factual] finding. In-

stead, the appellate decision simply excluded it and

treated the cases as though they had been selected

and analyzed in good faith:

That Poliner had over 20 years of experience and

an apparently clean record before these cases only

serves to heighten the concern: why was this ex:

perienced physician now having these problems?

Poliner v. Texas Health Sys., 537 F.3d 368, 379 (5th

Cir. 2008). But, as established by the trial court,

there were no genuine “problems” or “concern”, and

the parading of these cases was a charade lacking in

medical significance. HCQIA expressly forbids treat:

ing a bad faith peer review as though it were done in

good faith, and then immunizing the harm done by it.

A grant of this Petition for Certiorari is essential

to correct this error in statutory interpretation, which

continues to spread at the expense of the integrity

and quality of medical care.

ARGUMENT

An error in statutory interpretation in a split de-

cision over a decade ago by the Ninth Circuit has

gone uncorrected and spread for more than 15 years,

causing expansive use of an incorrect judicial stan:

dard of absolute immunity for bad faith peer review

by hospitals. Physicians who defend life, advance in-

novation, or stand up for patients, are intimidated,

threatened, and often destroyed by self-serving

wrongdoing by administrators, competitors, and ad:

versaries. This is an epidemic of intimidating our

6

finest and most ethical physicians, and restraining

much-needed advances in medical care.

The root of this epidemic is a 2-1 decision by the

Court of Appeals for the Ninth Circuit that down-

played the essential “belief” aspect of the “subjective

belief’ requirement. Austin v. McNamara, 979 F.2d

728 (9th Cir. 1992). There was no petition for certi-

orarl pursued to reverse that decision, and it has

since been reflexively repeated and expanded by low-

er courts. In this case the Fifth Circuit amplified this

error by overturning a jury verdict where there was

proven wrongdoing by defendants, and then entering

judgment for the defendants without even granting a

new trial. The result, if left unreviewed by this

Court, is that hospitals will expect to receive immuni-

ty for wrongful, anti-competitive, and retaliatory peer

reviews.

This precedent is catastrophic for medical care na-

tionwide. Physicians are deterred from speaking out

against hospital officials and competitors connected

with the hospital. “Sham peer review” has become a

powerful deterrent to improving quality of care. The

interpretation that HCQIA immunity extends to im-

proper motives is as harmful as it 1s legally unjusti-

fied. The courts below have converted the “reasona-

ble belief’ required by the statute into an “unreason-

able rationalization that might be believed by others

later.” Legal immunity is thereby uscd to encourage

improper motives and bad faith.

As the first Justice Harlan wrote for a unanimous

Supreme Court over a century ago, where the statu-

tory “language used is so plain and unambiguous,” “a

refusal to recognize its natural, obvious meaning

would be justly regarded as indicating a purpose to

change the law by judicial action based upon some

7

supposed policy of Congress.” Bate Refrigerating Co.

v. Sulzberger, 157 U.S. 1, 36-37 (1895). Here the

statutory language of HCQIA in requiring a “reason-

able belief’ is “so plain and unambiguous” as to re-

quire adherence to its textual meaning. Where, as

here, the terms of the statute are clear, such terms

should not be altered based on speculation about leg-

islative intent.

4 THE FIFTH CIRCUIT'S RELIANCE ON ITS OWN

(UNTRAINED) VIEW OF UNREPRESENTATIVE

MEDICAL CASES, WHICH WERE PROVEN TO BE

THE PRODUCT OF BAD FAITH, IS PRECISELY

WHAT HCQIA PROHIBITS.

The five cases at the heart of the Fifth Circuit’s

decision below are medically insignificant and the

proven result of bad faith in their selection, analysis

and presentation. Their contrived nature is typical of

bad faith peer reviews. Every cardiologist in the na-

tion has inevitable complications in patients; every

busy professional has less than a 100% success rate,

particularly when failures of associates are included.

HCQIA expressly forbids attaching immunity to a

bad faith review, which inherently distorts the selec:

tion, analysis and presentation of a professional’s

work. The finest physician in the world could see his

reputation and his career ruined if a bad faith re-

viewer were permitted with impunity to pick non-

representative cases and present them in a malicious

and distorted manner. Such “evidence” is thoroughly

corrupted, and federal law denies immunity to those

who attempt it. HCQIA does not condone the re-

peated smearing of a good physician ~ smearing that

will likely continue with Respondents’ filing with this

8

Court — based on cases of exaggerated significance

that were selected in bad faith, as found by the jury

below. (App. 132a-134a).

Yet AAPS has seen the same malicious tactic re-

peated again and again, and undoubtedly Respon-

dents will use it here: rely on a few exaggerated and

distorted cases not representative of the physician’s

practice, where fault lay elsewhere, and through bad

faith smear the targeted physician. HCQIA prohibits

this with its express requirement of a “reasonable be-

lief’ in furtherance of quality health care, as dis-

cussed in Point II below.

The five cases underlying the decision below illu-

strate how bad faith should never be protected with

immunity. 537 F.3d at 370-71. These cases were fri-

volous at best, and were not selected and presented in

an objective or good faith manner. A look at each

case illustrates the contrivance.

The first case cited below (Patient 36) was a fail-

ure in the hospital's own cquipment that prevented a

perfect initial diagnosis, and the deceitful peer review

shifted blame unjustifiably to Petitioner. The Fifth

Circuit below had no justification for relying on its

own (untrained) medical opinion about it as the basis

for its decision. Without citation or basis in the

record, the appellate court below blamed Petitioner

for making a “diagnostic mistake.” Jd. at 370. Had

this case been presented in good faith, the role of the

faulty hospital equipment in causing this harmless

error would have been clear. (App. 193a-194a, which

cites to the record.) Regardless, Petitioner’s care of

the patient in this case was entirely proper, and the

decision below does not state otherwise. Jd. at 370-

71. Giving such prominence to a case in which the

9

care was entirely appropriate illustrates the inherent

problem with relying on cases submitted in bad faith.

The four other cases trumpeted by Respondents,

and at the foundation of the decision below, are even

less significant. Patient 10 developed a mere rash

after a procedure. The bad faith peer reviewers, and

the appellate court, ascribed significance to this rash.

Id. at 371 & n.7. In fact, the patient had exercised

her right to refuse pre-treatment so as to prevent the

rash. Petitioner did nothing wrong. The appellate

court recognized this, and realized that the jury

found bad faith by the reviewers in selecting and pre’

senting these cases, App. 132a-134a, yet included the

bad faith allegations as a basis for its judgment in fa-

vor of the hospital defendants. This is precisely what

HCQIA prohibits by requiring proof of a “reasonable

belief” in furtherance of quality care as a condition of

ruling in favor of the peer reviewers.

Just as no statistician would take seriously a non-°

representative data sample, no court should apply

HCQIA to cases that are the product of proven bad

faith. Bad faith can easily mislead a court into think-

ing it is viewing something medically significant,

when in fact it is nonsensical. The occurrence of a

rash in a patient after a lite-saving procedure per-

formed by a cardiologist is not something to justify

destroying his reputation, particularly when he had

no fault for it.

The other patients’ cases are likewise medically

insignificant, yet the appellate court attached signi-

ficance to them due to being misled by the bad faith

behind the peer review. Patient 3 concerned Peti-

tioner’s reuse of a sheath site, a routine medical prac:

tice that was entirely justified. (App. 192a, which

cites to the record.) No harm resulted to the patient,

10

who was discharged in good condition, though this is

omitted from the decision below. /d. at 371 & n.5. A

common tactic in sham peer review is to present cas-

es in which, unrealized by other reviewers and courts,

the patient actually did perfectly well and there was

no harm or risk of harm. The bad faith criticism is

nothing more than biased speculation that is even

disproven by the evidence.

Most sham peer reviews look for a patient who

died and include that case, because its significance

can be easily exaggerated to a layman. Virtually all

cardiologists have patients who die, just as virtually

all good trial lawyers have lost some cases. Patient

18 fit the bill here. She was 88 years old and went

into cardiogenic shock before Petitioner's catheteriza-

tion. A hospital committee performed its customary

review and found that Petitioner’s care was entirely

appropriate, yet this was trumped up later for the

bad faith peer review and repeated by the decision

below. /d. at 371 & n.8; App. 189a-190a (which cites

to the record).

Patient 9 was an elderly, hypertensive patient

who had a stroke after Petitioner's procedure. No

fault could be found with Petitioner’s operation and,

as recognized by the decision below, there was noth-

ing Petitioner could have done to prevent the stroke;

any mistakes were made by the nursing staff, not Pe-

titioner. /d. at 371 & n.6.

Courts should not be misled by the distortions and

omissions inherent in bad faith peer review, and this

Court should clarify that HCQIA does not support the

judiciary passing medical judgment on cases that are

selected, analyzed, and presented in bad faith-—or

basically accepting the judgment asserted by the

sham peer review without review or question. Res-

1]

pondents should not continue here to distort these

cases, which were plainly selected and presented for

the purpose of smearing Petitioner rather than ad-

vancing quality health care as mandated by HCQIA.

Analyzing medical cases presented in bad faith is a

fool’s errand, and rubber stamping the corrupt prior

review is worse. The proof of bad faith by the trial

court below precludes the case-by-case inquiry at the

core of Respondents’ arguments and the appellate de-

cision.

This Court should grant review here to end the

judicial second-guessing of medical cases that are

presented in bad faith as though they are significant,

when in fact they are not. A harmless rash, an un-

preventable death, inadequate hospital diagnostic

equipment, and nursing staff errors should not be the

basis for sweeping judgments in favor of the perpe-

trators of sham peer reviews against innovative and

productive physicians. It thwarts the progress of

medicine and contravenes the text of HCQIA to allow

such bad faith to make a mockery of good medical

practice.

In sum, the five cases at the heart of the decision

below were plainly contrived: most consisted of pa-

tients who performed well, and included inevitable

complications (like a rash) that were no fault of the

targeted physician. Two of the cases, the elderly

death and the supposedly incorrect diagnosis about

an artery, are typical of sham peer review in inflam-

ing a stronger reaction by a reviewer (including a

court) than is warranted. Completely missing from

these cases is any evidence that they were represent:

ative of the physician's overall practice. They were

not. Yet these cases will undoubtedly be paraded by

Respondents again before this Court in the hope of

12

eliciting a layman’s reaction, which is what a proper

application of HCQIA would prevent.

Il. HCQIA’sS REQUIREMENT OF A “REASONABLE

BELIEF” IN FURTHERING QUALITY HEALTH

CARE DOES NOT REQUIRE EXCLUSION OF ALL

EVIDENCE OF BAD FAITH.

The terms of HCQIA are clear: a reasonable “be-

lief that the peer review advances the quality of

medicine is required before immunity can apply. 42

U.S.C. § 11112(a)(1) (emphasis added). This clear

text of a statute trumps any speculation about legis-

lative intent. “Judges interpret laws rather than re-

construct legislators’ intentions. Where the language

of those laws is clear, we are not free to replace it

with an unenacted legislative intent.” JNS v. Cardo-

za*Fonseca, 480 U.S. 421, 452-53 (1987) (Scalia, J.,

concurring). See also Unexcelled Chemical Corp. v.

United States, 345 U.S. 59, 64 (1953) (opinion of

Douglas, J.); United States v. Sullivan, 332 U.S. 689,

693 (1948) (opinion of Black, J.); Packard Motor Car

Co. v. NLRB, 330 U.S. 485, 492 (1947) (opinion of

Jackson, J.) (“We are invited to make a lengthy ex:

amination of views expressed in Congress while this

and later legislation was pending .... There is, how-

ever, no ambiguity in this Act to be clarified by resort

to legislative history, either of the Act itself or of sub-

sequent legislative proposals ....”).

As demonstrated below, it was a reversible error

for the court below to exclude an entire category of

evidence about “belief’ from this case. See 537 F.3d

at 379-80.

13

A. The Plain Meaning of HCQIA Requires

Subjective Belief as a Condition of Immun-

ity.

The statutory term “reasonable belief’ is not the

same as “reasonable basis” or “improper belief but a

proper result.” Rather, the term “reasonable belief”

must mean, first and foremost, a “belief? underlying

the action. There is no justification for courts to look

beyond this plain meaning and probe legislative his-

tory to alter it. After all, there is no legislative histo-

ry for all the hundreds of Congressmen, many dozens

of Senators, and President Ronald Reagan as to what

they intended in enacting or signing this legislation.

They would have probably pointed to the text itself,

as courts should do.

Yet courts, most notably the lower court here and

Austin v. McNamara, supra, failed to apply the text

of “reasonable belief.” The lower court incorrectly

held that “bad faith is immaterial.” Jd. at 380 (quot-

ing, inter alia, Austin). These precedents, grounded

in the initial error of Austin, have read the “belief”

aspect of the phrase entirely out of the law, and re-

placed it with a purely objective test to the exclusion

of all evidence of the motivating belief. As fully de-

scribed in the Petition, the jury found malicious in-

tent and pervasive wrongdoing, App. 132a-134a, and

the appellate court's own review of the medical

records hardly justifies its statement that there were

“legitimate concerns.” Jd. at 384. The concerns were

not legitimate, and HCQIA does not provide immuni-

ty for illegitimate peer review.

Judge Pregerson was correct in dissenting from

the Austin decision when he declared, “Evidence of

motive and intent is relevant to show whether the de-

fendants possessed a reasonable belief that [an ad-

14

verse professional review action] was warranted by

the facts known.” 979 F.2d at 741 n.3 (Pregerson, J.,

dissenting). But other circuits, relying on the Austin

majority, repeated its error. See, e.g., Bryan v. James

E. Holmes Reg. Med. Ctr., 33 F.3d 1318, 1335 (11th

Cir. 1994), cert. denied, 514 U.S. 1019 (1995) (“The

test is an objective one, so bad faith is immaterial.”);

see also Singh v. Blue Cross/Blue Shield of Mass.,

Inc., 308 F.3d 25, 32 (18t Cir. 2002) (collecting cases);

Sugarbaker v. SSM Health Care, 190 F.3d 905, 914

(8th Cir. 1999), cert. denied, 528 U.S. 1137 (2000) (“In

the HCQIA immunity context, the circuits that have

considered the issue all agree that the subjective bias

or bad faith motives of the peer reviewers is irrele-

vant.”). The decision below extends these erroneous

precedents even further by overturning a jury finding

of wrongdoing.

The Petition presents a manifest injustice result-

ing from allowing speculation about legislative intent

to trump the statutory text itself. The Petition

should be granted to enforce the text of HCQIA as it

was written. See generally John F. Manning, “What

Divides Textualists from Purposivists?,” 106 Colum.

L. Rev. 70 (2006); Caleb Nelson, “What Is Textual:

ism?,” 91 Va. L. Rev. 347, 349 (2005).

B. HCQIA’s Legislative History Does Not Support

Excluding and Ignoring Subjective Belief in

Connection with Immunity.

The court below relied on precedents based on a

misreading of the legislative history that began in

Austin v. McNamara, where the split Ninth Circuit

decision misconstrued the House Committee’s desire

for a “more objective” test as meaning an “only objec:

15

tive” test. “Our sister circuits have roundly rejected

the argument that such subjective motivations over-

come HCQIA immunity, as do we.” Poliner, 537 F.3d

at 379-80 (citing Austin). But the Fifth Circuit’s ex-

clusion of an entire category of evidence concerning

intent and bad faith, no matter how egregious, rests

on an erroneous interpretation of statutory history

set forth in Austin:

Initially, the [House! Committee considered a

‘good faith’ standard for professional review ac-

tions. In response to concerns that ‘good faith’

might be misinterpreted as requiring only a test of

the subjective state of mind of the physicians con-

ducting the professional review action, the Com-

mittee changed to a more objective ‘reasonable be-

lief standard. The Committee intends that this

test will be satisfied if the reviewers, with the in-

formation available to them at the time of the pro-

fessional review action, would reasonably have

concluded that their actions would restrict incom-

petent behavior or would protect patients.

979 F.2d at 734 (citing H.R. Rep. No. 903, 99th Cong.,

2d Sess. 10, reprinted in 1986 Code Cong. & Admin.

News 6392-93, emphasis altered). The Austin court

failed to recognize that the Committee was merely

rejecting an “only subjective” test, rather than elimi-

nating any and all inquiries into subjective belief; the

Austin court thereby created an incorrect “only objec:

tive” test that is increasingly exploited by sham peer

review.

There is no need to consult the legislative history

here, because the statutory text itself is clear. More-

over, the above legislative history does not support

ignoring the subjective belief underlying the peer re-

view. One commentator spotted the obvious flaw in

16

the judicial elimination of a subjective test based on

the legislative history:

The legislative history of the HCQIA does not

support this interpretation of the Act. Congress

initially considered a good faith test; however, it

was concerned that such a test would be “misin-

terpreted by courts as requiring only a test of the

subjective state of mind” of the peer review com-

mittee members. Therefore, Congress adopted the

“more objective ‘reasonable belief standard.”

Anthony W. Rodgers, “Comment: Procedural Protec:

tions During Medical Peer Review: A Reinterpreta-

tion of the Health Care Quality Improvement Act of

1986,” 111 Penn St. L. Rev. 1047, 1056 (Spring 2007)

(citations omitted). The Austin Court overlooked how

Congress intended that HCQIA encourage “good faith

professional review activities of health care entities.”

The reliance on legislative intent also omits what

is strikingly absent from the legislative history: any

indication that Congress sought to tilt the playing

field in favor of unrestrained and unaccountable

abuse of power by hospitals in eliminating innova:

tive, competitive or outspoken physicians. Nothing in

the legislative history even remotely supports the

view that HCQIA could be applied to protect sham

peer review, and it was reversible error for the Fifth

Circuit to allow such use. Yet that is what has oc:

curred by excluding all evidence of bad faith from

judicial review of peer review actions.

Ignoring subjective belief is plainly contrary ta.the

stated goal of the HCQIA: to advance the quality of

medical care. Legitimate peer review is to improve

patient care, not to advance improper motives of self:

interest at a hospital. HCQIA requires “reasonable

17

belief,” and any “objective test” based on that stan-

_ dard must still require a legitimate belief. The appel-

late decision itself references the term “concern”

nearly two dozen times, implying the necessity of a

legitimate concern to justify hospital action. See, e.z.,

537 F.3d at 384 (citing “legitimate concerns” despite

the finding of bad faith). But the jury found a lack of

a legitimate concern, and the appellate court ex-

tended immunity to cover all bad faith in peer review.

(App. 132a-134a.) This contravenes HCQIA.

C. “Reasonable Belief’ Must Include a Subjective

Element to Avoid Constitutional Difficulties.

In the absence of a subjective test, immunity has

been applied to protect even discriminatory conduct

during peer reviews. For example, a Maryland Court

relied on Austin to hold that sexual discrimination by

peer reviewers “which would be considered illegal in

the context of employment [is] irrelevant when chal-

lenging a medical peer review process.” Sender v.

Suburban Hosp., Inc., 758 A.2d 1090, 1100 (Md. Ct.

Spec. App. 2000), cert. denied, 362 Md. 34, 762 A.2d

968 (2000). But a statutory grant of immunity to pro-

tect a discriminatory purpose would raise grave con-

stitutional difficulties, and such interpretation of

HCQIA to immunize discrimination should be

avoided.

“It has long been an axiom of statutory interpreta:

tion that ‘where an otherwise acceptable construction

of a statute would raise serious constitutional prob-

lems, the Court will construe the statute to avoid

such problems unless such construction is plainly

contrary to the intent of Congress.” Public Citizen v.

United States Dep't of Justice, 491 U.S. 440, 466

18

(1989) (citing Edward J. DeBartolo Corp. v. Florida

Gulf Coast Building & Construction Trades Council,

485 U.S. 568, 575 (1988)). Sutherland’s Statutes and

Statutory Construction recites that a “court should

construe legislative enactments to avoid constitution:

al difficulties if possible” and that “when possible,

statutory provisions should be construed in such a

way as to avoid unconstitutionality.” Norman Singer,

Sutherland’s Statutes and Statutory Construction

45.11, 48-49 n.4 & n.7 (5th ed. 1992).

Construing HCQIA to immunize bad faith, and

even discriminatory intent, triggers constitutional

issues of due process and equal protection. Such an

interpretation should be rejected under the doctrine

of constitutional avoidance.

II]. EXTENDING IMMUNITY TO IMPROPER MOTIVES

IN PEER REVIEW IS HAVING A CATASTROPHIC

EFFECT ON THE PUBLIC INTEREST.

The judicially created federal immunity for bad

faith in peer review has unleashed a national epidem-

ic of sham peer review, at the expense of the public

interest. See, e.g., Gail Weiss, “Is Peer Review Worth

Saving?’, Medical Economics (Feb. 18, 2005); Steve

Twedt, “The Cost of Courage: How the Tables Turn

on Doctors,” Pittsburgh Post-Gazette Al (Oct. 26,

2003);3 John Zicconi, “Due Process or Professional

Assassination?”, Unique Opportunities (March/April

http://www.memag.com/memag/article/articleDetail.jsp?id=1474

05 (viewed 11/20/08).

*http://www.post-gazette.com/pg/03299/234499.stm (viewed

11/20/08).

19

2001);4 David Townsend, “Hospital Peer Review Is a

Kangaroo Court,” Medical Economics 133 (Feb. 7,

2000). Patients and the public suffer. the most from

the removal of competent and skilled physicians from

the market, or their being deterred from competing.

For years the catastrophic nature of sham peer

review has been recounted in medical journals. See,

e.g., William Summers, “Sham Peer Review: A Psy:

chiatrist’s Experience and Analysis,” 10 Journal of

American Physicians and Surgeons 125 (Winter

2005);5 Roland Chalifoux, Jr., M.D., “So What Is a

Sham Peer Review?”, 7 Medscape General Medicine

(No. 4) 47 (2005); John Minarcik, M.D., “Sham Peer

Review: a Pathology Report,” 9 Journal of American

Physicians and Surgeons 121 (Winter 2004); Law:

rence Huntoon, M.D., Ph.D., “Sham Peer Review: The

Unjust Objective Test,” 12 Journal of American Phy-

sicians and Surgeons 100 (Winter 2004);?7 William

Parmley, “Clinical Peer Review or Competitive Hat-

chet Job,” 36 Journal of the American College of Car-

diology 2347 (2000).

Hospitals‘ and their favorite physicians are moti-

vated by money just like everyone else, and if they

enjoy immunity to eliminate competitors who im-

pinge on their income, then they will do precisely

that. See, e.g., Jeff Chu, “Doctors Who Hurt Doctors,”

Time 52 (Aug. 15, 2005) (“Thle] system is too open to

manipulation and needs reform, says the 4,000-

member American Association [sic] of Physicians and

: http://www.uoworks.com/pdfs/feats/PEERREVIEW.pdf (viewed

11/20/08).

“http://www .jpands.org/vol10no4/summers.pdf (viewed 11/20/08).

* http://www.jpands.org/vol9no4/minarcik.pdf (viewed 11/20/08).

’ http://www.jpands.org/voll2no4/huntoon.pdf (viewed 11/20/08).

20

Surgeons.”). Patients and the public interest suffer

most when physicians are deterred by sham peer re-

view from advancing quality medical care.

If a physician were truly a danger to patients,

then the state medical board would restrict or revoke

his medical license. Patients would abandon such a

physician, just as shoppers will not continue buying

bad products. Or if a hospital wants to rid itself of a

negligent physician, then it may do so regardless of

whether it has special immunity under federal law.

But immunity for wrongful acts is misplaced.

Judicial construction of HCQIA to grant immunity

to hospitals for bad faith peer review has caused an

epidemic of abuse, now greatly magnified by the deci-

sion below.

CONCLUSION

This Court should grant the Petition for Writ of

Certiorari.

Respectfully submitted,

ANDREW L. SCHLAFLY

939 OLD CHESTER ROAD

FAR HILLS, NJ 07931

(908) 719-8608

Counsel for Amicus

Dated: November 21, 2008