J-A18029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

VICTOR F. NOVAK, II, M.D., F.A.C.              IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellant

                       v.

SOMERSET HOSPITAL: MICHAEL J.
FARRELL: JAVAD SAADAT M.D.: AND
PETER T. GO, M.D.

                            Appellee               No. 1862 WDA 2016


               Appeal from the Order Entered November 9, 2016
               In the Court of Common Pleas of Somerset County
                      Civil Division at No(s): 653 Civil 2014


BEFORE: BOWES, J., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.:                     FILED DECEMBER 06, 2017

       Victor F. Novak, II, M.D., F.A.C., appeals from the order, entered in

the Court of Common Pleas of Somerset County, granting summary

judgment in favor of Somerset Hospital (“Somerset”). After careful review,

we affirm based on the well-reasoned opinion of the Honorable Scott P.

Bittner.1

____________________________________________


1
  On August 18, 2017, Doctor Novak filed a petition for withdrawal of
appearance of Katherine J. McLay, Esq., as counsel of record in this appeal.
See Pa.R.C.P. 1012(b) (“[A]n attorney may not withdraw his or her
appearance without leave of court.”). Manning J. O’Connor, Esq., who has
entered his appearance before this Court, will remain counsel to Dr. Novak
in this appeal. Attorney McLay’s withdrawal as attorney of record will
neither delay this proceeding nor prejudice Dr. Novak’s representation.
Accordingly, we grant Attorney McLay’s petition for withdrawal of
appearance.
J-A18029-17



      Doctor Novak is a board certified general surgeon who practiced at

Somerset Hospital from 1993 until 2005. In 2005, two patients approached

Dr. Novak and asked him to perform surgery to replace implantable

cardioverter defibrillator (“ICD”) generators.   Doctor Novak did not have

hospital privileges to implant or change ICD devices, however, he agreed to

perform these surgeries.     When Dr. Novak was about to begin surgery,

operating room staff contacted Jonathan Kates, M.D., the Chair of

Somerset’s Credentials Committee.      Doctor Kates approved the procedure,

but Dr. Novak was not aware of Dr. Kates’ approval at the time he

performed the surgeries.     The surgeries were successful and no patients

suffered any sequela as a result of the procedures performed.

      Michael Farrell, Somerset’s Chief Executive Officer, assembled a task

force of administrators to investigate the circumstances of the surgeries; M.

Javad Saadat, M.D., then-president of Somerset’s medical team, joined the

task force after its initial conception.   The task force never informed Dr.

Novak of its investigation in writing, nor did it recommend discipline against

Dr. Novak. However, upon completion of the task force investigation, Farrell

referred the matter to the Medical Executive Committee (“MEC”).

      The MEC held four meetings on this matter, of which Dr. Novak and his

attorney attended at least one.    On November 7, 2005, the MEC issued a

confidential memorandum to Somerset’s Board of Directors (“the Board”)

and deferred judgment on the matter to the Board; the MEC did not

recommend a specific sanction in its report.     After a lengthy review, the

                                     -2-
J-A18029-17



Board     ultimately     revoked    Dr.    Novak’s     clinical   privileges     and   staff

appointments.2 The Board upheld this decision following Dr. Novak’s appeal

to    Somerset’s       Fair   Hearing     Panel     (“Panel”),    despite      the   Panel’s

recommendation that the Board’s initial decision be reconsidered.

        Doctor Novak initially brought suit against Somerset in 2007, alleging,

among other claims, tortious interference with prospective contractual

relations and breach of contract stemming from the revocation of his clinical

privileges and staff appointments.             We adopt the trial court’s recitation of

the lengthy and complicated procedural history of this case. See Trial Court

Opinion, 11/9/2016, at 1-2.

        On appeal, Dr. Novak raises the following issues for our review:

        1. Whether Dr. Novak provided sufficient specificity regarding
           the prospective contracts at issue in his claim for tortious
           interference with contract such that summary judgment was
           improperly granted in favor of Somerset Hospital and Hospital
           Parties.

        2. Whether Somerset Hospital’s investigation of Dr. Novak
           lacked the requisite objectivity to be considered a
           “professional review action” as defined by the Healthcare
           Quality Improvement Act[3] [(“HCQIA”)] and to earn the
           Hospital pecuniary immunity in light of evidence of motive
           and misconduct of the examining individuals and entities.

Brief of Appellant, at 3.
____________________________________________


2
  The Board met on November 14 and 21, 2005, to consider the MEC’s
report, solicited outside opinions and heard from several physicians in
support of Dr. Novak.
3
    42 U.S.C.A. § 11112(a).



                                           -3-
J-A18029-17



      Both of Dr. Novak’s issues present arguments in support of his

contention that the trial court erred in granting summary judgment in favor

of Somerset. In reviewing the trial court’s grant of summary judgment, we

are guided by the following scope and standard of review:

      A reviewing court may disturb the order of the trial court only
      where it is established that the court committed an error of law
      or abused its discretion. As with all questions of law, our review
      is plenary.

      In evaluating the trial court’s decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
      where there is no genuine issue of material fact and the moving
      party is entitled to relief as a matter of law, summary judgment
      may be entered. Where the non[-]moving party bears the
      burden of proof on an issue, he may not merely rely on his
      pleadings or answers in order to survive summary judgment.
      Failure of a non-moving party to adduce sufficient evidence on
      an issue essential to his case and on which he bears the burden
      of proof establishes the entitlement of the moving party to
      judgment as a matter of law. Lastly, we will review the record in
      the light most favorable to the non-moving party, and all doubts
      as to the existence of a genuine issue of material fact must be
      resolved against the moving party.

Shepard v. Temple University, 948 A.2d 852, 856 (Pa. Super. 2008).

Accordingly, we must “determine whether the record either establishes that

the material facts are undisputed or contains insufficient evidence of facts to

make out a prima facie cause of action, such that there is no issue to be

decided by the fact-finder.” Reeser v. NGK North America, Inc., 14 A.3d

896, 898 (Pa. Super. 2011) (quoting Jones v. Levin, 940 A.2d 451, 452-54

(Pa. Super. 2007)) (internal citations omitted).




                                     -4-
J-A18029-17



       Instantly,     Somerset       claims      immunity   under   the   HCQIA.4

Consequently, our review of the trial court’s grant of summary judgment

must account for the presumption of immunity imposed by the HCQIA:

       A synthesis         of      our summary judgment law           and
       the HCQIA reveals that a plaintiff bears the burden of proof in
       rebutting the presumption that a defendant acted in compliance
       with § 11112(a). Thus, the entry of summary judgment against
       a plaintiff will be reversed only if he can establish that there is
       either a genuine dispute about a material fact or that he has
       adduced sufficient evidence so that a jury, examining the totality
       of the circumstances, could conclude that the plaintiff had
       rebutted the presumption.

Babb v. Centre Community Hosp., 47 A.3d 1214, 1224-25 (Pa. Super.

2012) (quoting Manzetti v. Mercy Hosp. of Pittsburgh, 776 A.2d 938,

946 (Pa. 2001)).

       In considering the defendant’s motions for summary judgment
       based on HCQIA immunity, we ask the following: might a
       reasonable jury, viewing the facts in the best light for [plaintiff],
       conclude that he has shown, by a preponderance of the
       evidence, that the defendants' actions are outside the scope of §
       11112(a)? Therefore, plaintiff can overcome HCQIA immunity at
       the summary judgment stage only if he demonstrates that a
       reasonable jury could find that defendants did not conduct the
       relevant peer review actions in accordance with one of the
       HCQIA standards.

Id. at 1225 (quoting Singh v. Blue Cross/Blue Shield of Mass. Inc., 308

F.3d 25, 32 (1st Cir. 2002)) (quotations and brackets omitted).



____________________________________________


4
 The general purpose of the HCQIA is aptly summarized in Babb v. Centre
Community Hosp., 47 A.3d 1214 (Pa. Super. 2012).



                                           -5-
J-A18029-17


       It is true, as our formulation here of the summary
       judgment question suggests (asking whether a reasonable jury
       could find that a defendant did not meet one of the standards
       for HCQIA immunity), that the statutory scheme contemplates a
       role for the jury, in an appropriate case, in deciding whether a
       defendant is entitled to HCQIA immunity. The weight of authority
       from our sister circuits reflects this proposition.

Id. (quoting Singh, 308 F.3d at 33).

       Doctor Novak first avers that the trial court erred in granting summary

judgment in favor of Somerset Hospital because he provided sufficient

evidence showing he was deprived of prospective contracts and future

earnings.5

       The requisite elements of a cause of action for interference with

prospective contractual relations are as follows:         (1) a prospective

contractual relationship [exists]; (2) the purpose or intent to harm the

plaintiff by preventing the relationship from happening; (3) the absence of

privilege or justification on the part of the defendant; and (4) the

occasioning of actual damage resulting from the defendant’s conduct.

Foster v. UPMC South Side Hosp., 2 A.3d 655, 665 (quoting Restatement

(Second) of Torts § 766(b) (1979)). A plaintiff must show that there is a

____________________________________________


5
  Although the HCQIA provides immunity to hospitals, and others, against
claims arising out of a peer review process, which arguably includes claims
for tortious interference with contracts, Somerset has not pursued this
argument. Rather, Somerset argues Dr. Novak presented no evidence of
existing or prospective contracts that allegedly were interfered with by
Somerset. Accordingly, the trial court did not reach the issue of whether the
HCQIA applies to Dr. Novak’s tort claim, and resolved it on other grounds
raised by Somerset.



                                           -6-
J-A18029-17



reasonable likelihood or probability that a prospective contract exists. See

Phillips v. Selig, 959 A.2d 420, 428 (Pa. Super. 2008).                  This reasonable

likelihood “must be something more than a mere hope or the innate

optimism of the salesman.” Id. (citing Glenn v. Point Park College, 272

A.2d 895, 899 (Pa. 1971)).

      We note, initially, that Dr. Novak concedes that he had no existing

contractual relationships that were interfered with by the revocation of his

admission privileges at Somerset Hospital.                Furthermore, the trial court

determined that Dr. Novak failed to adduce any evidence of the existence of

any prospective contractual relations that he claimed Somerset interfered

with. See Trial Court Opinion, 11/9/16, at 11. See Phillips, 959 A.2d at

428-29 (in determining whether reasonable likelihood or probability of

prospective    contractual     relationship     exists,    Pennsylvania    courts     have

consistently required more evidence than existence of current business or

contractual relationship). Therefore, Dr. Novak’s claim is meritless.

      Dr. Novak next claims that Somerset’s investigation was not a

professional review action pursuant to the HCQIA, and thus it is not immune

from monetary damages. Specifically, Dr. Novak alleges he was subject to

unfavorable treatment based on matters not relating to his competence or

professional   conduct       (i.e.,   personal    animus       and/or    anticompetitive

concerns).

      Congress passed the HCQIA to improve the quality of medical care by

encouraging     the   identification      and     discipline     of     incompetent     or

                                          -7-
J-A18029-17



unprofessional physicians by granting limited immunity from suits for money

damages to participants in professional peer review actions.       Mathews v.

Lancaster Gen Hosp., 87 F.3d 624, 632 (3d Cir. 1996) (citations omitted).

Only a “professional review action” is qualified for immunity under the

HCQIA.     A professional review action is defined as an action taken by a

review body when review is based on the competence or professional

conduct of an individual physician and which affects the clinical privileges of

the physician. 42 U.S.C. § 11151(9).       Only the final decision by the peer

review body and any action that results from it constitutes professional

review action. Mathews, 87 F. 3d at 634. Further, a professional review

action can be taken against unprofessional conduct which could adversely

affect the health or welfare of a patient. Gordon v. Lewistown Hosp., 423

F.3d 184, 203 (3d Cir. 2005).

      While Dr. Novak’s surgery did not result in the injury of any patients,

Somerset had not granted him privileges to perform these surgeries.

Therefore, these surgeries were unprofessional conduct that could have

resulted in injury; thus, the action taken against Dr. Novak constituted a

professional review action.

      In order to be protected from damages, professional review action

must be taken:

      1.     in the reasonable belief that the action was in the
             furtherance of quality health care,

      2.     after a reasonable effort to obtain the facts of the matter,


                                     -8-
J-A18029-17


       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 U.S.C. § 11111(a)] unless
              the presumption is rebutted by a preponderance of the
              evidence.

42 U.S.C. § 11112 (a)(1-4). Under the HCQIA, Dr. Novak “bears the burden

of proving that the professional review process was not reasonable and thus

did not meet the standard for immunity.” Mathews, 87 F. 3d at 633.

       Here, the trial court determined that Dr. Novak failed to carry his

burden as to each of the four required elements of the HCQIA, and,

therefore, Somerset had complied with the HCQIA as to receive immunity for

its having revoked Dr. Novak’s privileges.       See Gordon v. Lewistown

Hosp., 423 F.3d 184, 192-94 (3d Cir. 2005) (plaintiff bears burden of

proving disputed professional review process was not reasonable and thus

did not meet standard for immunity under HCQIA).6

       After reviewing the parties’ briefs, the record and the relevant case

law, we conclude that Judge Bittner’s well-reasoned opinion thoroughly and

____________________________________________


6
  Even if Somerset’s rationale for commencing a professional review action
was, as Dr. Novak alleges, shaded by animus or flawed, if the facts are
indisputable and support the Board’s decision revoking his clinical privileges
and staff appointments, Dr. Novak has not carried his burden of proving the
professional review action was unreasonable. See Gordon, supra.



                                           -9-
J-A18029-17



properly disposes of the question of whether Somerset is entitled to

summary judgment as a matter of law. Accordingly, we affirm on the basis

of the trial court’s opinion, which counsel should attach in the event of

further proceedings.

     Order affirmed. Petition for withdrawal of appearance granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/6/17




                                  - 10 -
                                                   Received 12/27/2016 3:16:19 PMCirculated
                                                                                  Superior Court Wester03:36
                                                                                            11/08/2017   District
                                                                                                             PM




 VICTOR F. NOV� II, M.D., F.A.C.S.,

                                Plaintiffs,

                        v.

 SOMERSET HOSPITAL; Jv1ICHAL J.
 FARRELL; M. JAvxo SAADAT, M.D.;
 and PETER T. GO, M.D.,

                                 Defendants.




For Plaintiff:           Manning J. O'Connor II, Esq.V
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                         Pat Sorek, Esq.                                               Oo;;� 0 -q
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For Defendants:          David R. Johnson, Esq.
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                         William James Rogers, Esq.                                    :t> -(M            -..      CJ
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                         Daniel W. Rullo, Esq.                                                            en
                                                                                                                   tI
Argument:                May 27, 2016


                                         MEMORANDUM

         This matter comes before us on Defendants' Motion for Summary Judgment; which,
                                         '
for the reasons discussed infra, is granted.


    I.   FACTUAL AND J>ROCED1JRAL IDSTORY

         Plaintiff, Victor F. Novak II, M.D., F.A.C.S., initially brought suit against the

Defendants in the United.States District Court for the Western District of Pennsylvania in

2007. Plaintiff filed a First Amended Complaint in that court on October 21, 2008, asserting




                                                                                 f;luJ : ····
five claims: the first two claims were based on alleged violations of thsLShennan Act.JS _
                                                                      fr'! r:··· ,1.-: .: •; =�-' ,.,. ,,. ,J
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U.S.C. §§ 1, 2; the third claim, arising out of the Clayton Act, 15 U.S.C. § "26, was for

injunctive relief against Defendant Somerset Hospital; the fourth claim, based on state law,

was for tortious interference with prospective contractual relations with patients in the

Somerset area; and the fifth and final claim consisted of a state law breach of contract claim.

Novak v. Somerset Hosp., 2014 U.S. Dist. LEXIS 138028 at *27, No. 3:07cv304 (W.D. Pa.,

Sep. 30, 2014).

       The District Court granted summary judgment in favor of Defendants on Counts I, II

and III, and dismissed Counts IV and V containing the remaining state law claims, the

District Court having declined to exercise supplemental jurisdiction over the latter. Id. at

*75-*77. The Third Circuit Court of Appeals affirmed. Novak v. Somerset Hosp., 625 Fed.

App'x. 65, 2015 U.S. App. LEXIS 14634, No. 14-4354 (3d Cir. Aug. 20, 2015).

       After the District Court dismissed the Plaintiff's state law claims, the Plaintiff then

transferred his action to this Court, pursuant to 42 Pa. Cons. Stat. § 5103, on October 30,.

2014. Defendants filed Preliminary Objections and a brief, in support thereof on November

20, 2014.   Plaintiff filed a response and supporting brief on December 10, 2014.          The

Preliminary Objections were overruled by Order of Court dated July 23, 2015 (Klementik,

J.). Defendants filed their Motion for Summary Judgment on April 14, 2016, along with an
                                    .·
accompanying brief. Plaintiff filed his opposing brief on May 6, 2016. Defendants filed a

reply brief on May 26, 2016, and oral argwnent occurred on May 27, 2016.

       As an initial matter, Defendants' Motion for Summary Judgment relies heavily on the

federal courts' opinions discussed supra. See, e.g., Defs.' Mot. for Summ. J. § E, Apr. 14,

2016; Defs.' Br. 2-4, 8-10, Apr. 14, 2016; Defs.' Reply Br. 3, 5-6, May 26, 2016.

Defendants' reliance on facts found by the federal courts raises the issue of whether this



                                         2
Court can properly take judicial notice of the federal court opinions and the facts contained

therein.

           The law on this issue is that "a court may not ordinarily take judicial notice in one

case of the records of another case ... However, it has been held in situations dealing both

with preliminary _9bjections and summary judgments that this does not hold true where the

facts are admitted." Gulentz v. Schanno Trans., Inc., 513 A.2d 440, 443 (Pa. Super. Ct.

1986) (internal citations omitted). The Defendants have cited no authority to the contrary

that would permit this Court to otherwise take judicial notice of the federal courts' opinions.

Therefore, per Gulentz, we must determine whether Plaintiff admits the facts contained in the

federal courts' opinions.

            In this case, while Plaintiff has stated that he "relies in part upon the procedural

history as set forth by the U.S. District Court .. .in its September 30, 2014 Opinion," Pl.'s Br.

in Opp. to D�fs.' Mot. for Surnrn. J. 2, May 6, 2016, Plaintiff also stated that the District ..

Court's opinion "grossly mischaracterized material facts and substantively evaluated only Dr.

Novak's claims arising under federal law." Id. at 1. . We take this to mean that Plaintiff

admits to the procedural history contained in the federal cases, but disputes those courts'

findings of fact, in which case, we are precluded from taking judicial notice of the federal

courts' opinions and the facts contained therein, except for the procedural facts discussed

supra,.which Plaintiff admits are true.

       In the interest of judicial efficiency, we address Plaintiffs claims infra, and present

the facts only insofar as relevant to our evaluation of the legal and factual sufficiency of the
                            ..
aforementioned claims, rather than provide a more exhaustive narrative up front.
    II. STANDARD

        Summary judgment may be granted "whenever there is no genuine issue of any

material fact as to a necessary element of the cause of action or defense which could be

established by additional discovery or expert report"; or "if, after the completion of

discovery ... an adverse party who will bear the burden of proof at trial has failed to produce

evidence of facts essential to the cause of action ... which in a jury trial would .require the

issues to b_e submitted to a jury." Pa.R.C.P. 1035.2(1), (2). As the rule's note states, the

former applies where "the material facts are undisputed and, therefore, there is no issue to be

submitted to a jury," and the latter applies where "the record contains insufficient evidence of

facts to make out a prirna facie cause of action ... and therefore, there is no issue to be

submitted to a jury."

       Per the Superior Court, "where there is no genuine issue of material fact and the

moving party is entitled to relief as a matter of law, summary judgment may -be entered."

Thompson v. Ginkel, 95 A.3d 900, 904 (Pa. Super. Ct. 2014). Further,

                [ w[here the non-moving party bears the burden of proof on an
               issue, he may not merely rely on his pleadings or answers in
               order to survive summary judgment. Failure of the non-
               moving party to adduce sufficient evidence on an issue
               essential to his case 'and on which [he] bears the burden of
               proof establishes the entitlement of the moving party to
               judgment as a matter of law.

Id. See also Truax v. Roulhac, 126 A.3d 991, 997 (Pa. Super. Ct. 2015). Still, we must "take

all facts of record and reasonable inferences therefrom in a light most favorable to the non-

moving party." Truax, 12.6 A.3.d at 996 (citing Toy v. Metropolitan Life Ins. Co., 928 A.2d

186, 195 (Pa. 2007)). In so doing, we must "resolve all doubts as to the existence of a

genuine issue of material fact against the moving party, and ... may only grant summary

                                         4
judgment where the right to such judgment is clear and free from all doubt." Id. (citing Toy,

928 A.2d at 195) (internal quotations omitted). See also, Ginkel, 95 A.3d at 904.


    Iii. ANALYSIS

          Plaintiff avers the following: Plaintiff is a board-certified general surgeon who

practiced at Somerset Hospital from 1993 to 2005. Pl.'s Br. 2. In 2005, Plaintiff performed

two operations, one on each of two patients, to replace implantable cardioverter defibrillator

("ICD") generators. Id. at 3. The hospital subsequently initiated an investigation regarding

Plaintiff which culminated in Plaintiff having his privileges revoked. Id. Plaintiffs more

specific allegations will be addressed infra insofar as relevant to our consideration of his

claims.

          As noted supra, Plaintiff brought five claims against Defendants in federal district

court. The federal district court granted summary judgment to Defendants as to Plaintiffs

first three counts, all of which were based on federal law, and declined-to exercise

supplemental jurisdiction over Plaintiffs two state law claims. The Third Circuit affirmed.

          Plaintiff filed this lawsuit on October 30, 2014, indicating that this action was being

transferred from federal court pursuant to 42 Pa. Cons. Stat. § 5103. The Complaint appears

to be a duplicate of the complaint filed in federal court, as it lists the five counts discussed by

the District Court. Because the first three counts of the Complaint have been adjudicated by

the federal courts, only the last two counts remain, to wit: Count IV, Tortious Interference

with Contractual Relations; and Count V, Breach of Contract.

          A. Tortious Interference with Contractual Relations

          Against all Defendants, Count IV alleges that, "[ajs a direct and proximate result of

Defendants' unlawful interference with Dr. Novak's current and/or prospective contractual

                                           5
relations, Dr. Novak has suffered injury to his business and property, including but not

limited to lost wages, lost fees, lost referrals, lost professional experience and damage to

reputation." Compl. � 133, Oct. 30, 2014. The Health Care Quality Improvement Act, which

is discussed in more depth infra, provides immunity to hospitals, and others, against claims

arising out of a p�_er review process, which arguably includes claims for tortious interference

with contract, see Bakare v. Pinnacle Health Hosp., lnc.;469 F. Supp. 2d 272, 291 (M.D. Pa.

2006). However, Defendants have not-pursued this argument. Therefore, we do not reach

the issue of whether the Health Care Quality Improvement Act applies to Plaintiffs tort

claim, and we instead resolve it on other grounds raised by Defendants.

       Defendants first argue that "Dr. Novak cannot and does not point to any patient who

was contractually obligated to use (his] services." Defs.' Mot. 2, Apr. 14, 2016. So, "[i]n the

absence of a contract or a prospective contract, there can be no interference with contractual

relations." Id.   Plaintiff seems to concede that Defendants have not interfered with any ..

existing contractual relations. See Pl.'s Br. 7-9 (stating, "While it may be that a patient is

under no obligation to seek a specific medical professional for initial or ongoing medical

treatment, that rule ... is inapplicable to this claim"; "Facts exist herein ... to show that the

revocation of Dr. Novak's privileges at the Hospital... prevented him from accessing
                                     I


Somerset Hospital's referral network, which had served and would continue to serve as a

source of referrals for new and prospective patients"; "[S]ufficient evidence exists that

would allow a reasonable jury to find that future contracts existed between Dr. Novak and

potential patients"; and, finally, "Defendants have not substantively challenged whether
                         "      .
potential contracts existed; therefore, their argument that no contracts existed between Dr.

Novak and Somerset County patients for surgical services is inapposite under the law of the



                                          6
    Commonwealth.") (some emphases added). Cf. Arg. Tr. 16-17, May 27, 2016 (Plaintiffs

    counsel stating, "[I]t's impossible to say what his prospective contracts are. Everyone in the

region is a prospective contract because anyone in the region could at a moment's notice

need his services"; and that the hospital had a "non-exclusive contract with the prison, [ and]

it was Dr. Novak who was performing the services for the prison. So ... while Doctor Novak

was at Somerset Hospital, he was the person doing it; and, when he was removed, he was not

able to do that.       So there was an existing contractual relationship and probably also a

prospective one"; "There are other patients who were unable to utilize his services when he

was terminated ... [because] they did not want to travel to Conemaugh because it was not

convenient for them .... "; and, finally, "[Tjhere were people who had insurance that was

accepted at Somerset Hospital but was not accepted at Conemaugh. They were existing

contractual relations that were eliminated by the hospital's actions with regard to Doctor

Novak.").

           We note, initially, that Plaintiff has admitted in his brief opposing summary judgment

that he had no existing contractual relationships that were interfered w:ith by the revocation of

his admission privileges at Somerset Hospital. Pl.'s Br. 7-9. However, to the extent that he

contradicted this admission at argument, we observe: (1) the non-exclusive contract existing

between Laurel Highlands prison and Somerset Hospital was not a contract between the

prison and Dr. Novak, meaning Somerset Hospital could not interfere w:ith a contract

between Dr. Novak and the prison, because no such contract existed; 1 and (2) regarding the


I
  See Defs.' Resp. to Am. Counter-Statement of Material Facts Not in Dispute 1129 and response thereto, Oct.
30, 2014 (originally filed in No. 3:07-cv-003040-DSC (W.D. Pa. July 19, 2013)) (Plaintiff having stated,
"Somerset [Hospital] has a contract with Laurel Highlands Prison .... " and Defendants disputing this, replying,
"It is undisputed that Somerset Hospital has a non-exclusive contract with PHS, Physician and Healthcare
Services, to provide Hospital care to inmates at Laurel Highlands prison."). Notwithstanding the parties'
disagreement over the particulars, they both agree that the contract was between Somerset Hospital and a third
party, not Plaintiff and a third party, which is all that is necessary to support our determination that there has

                                                 7
patients who voluntarily left Dr. Novak's care because they did not wish to travel to

Conemaugh, the sole evidence we have been directed to in support of this allegation is Dr.

Novak's affidavit, in which he swore, "I have had a substantial number of previous and '

potential patients receive care at Somerset Hospital for whom, had my privileges not been

revoked, I believe I would have treated at Somerset Hospital," Pl.'s Br., Ex. B at� 7

(emphasis added). This evidence plainly does not establish that there were existing contracts

that were interfered with by Defendants, but rather relates to alleged prospective ones. We

therefore find that Plaintiff has adduced no evidence whatsoever of existing contracts that

were allegedly interfered with by Defendants, but rather relies on the existence of prospective

contractual relations.

         The law regarding intentional interference with prospective contractual relationships

is well-established, and its requisite elements are:

                 (1) a prospective contractual relationship;

                 (2) the purpose or intent to harm the plaintiff by preventing the
                     relation from occurring;

                 (3) the absence of privilege or justification on the part of the
                     defendant; and

                 (4) the occasioning of actual damage resulting from the
                     defendant's conduct.

Foster v, UPMC South Side Hosp., 2 A.3d 655, 665 (Pa. Super. Ct. 2010) (citing Phillips v.

Selig, 959 A.2d 420, 428 (Pa. Super. Ct. 2008) and Restatement (Second) of Torts §766B).

        Anything "that is prospective in nature is necessarily uncertain. We are not here

dealing with ·certainties, but reasonable likelihood or probability." Foster, 2 A.3d at 665


been no contractual relationship alleged to exist between Plaintiff and the prison (or the prison's proxy). No
evidence has been presented to the contrary. We have also been directed to no unambiguous claim, let alone
evidence, of existing contractual relations between Plaintiff and any prisoners.

                                               8
(citing Phillips, 959 A.2d at 428).      In making the "reasonable likelihood or probability"

determination, courts must apply an objective standard. Phillips, 959 A.2d at 428 (citing

Thompson Coal Co. v. Pike Coal Co., 412 A.2d466, 471 (Pa. 1979)). In so doing,

               Pennsylvania courts have consistently required more evidence
               than the existence of a current business or contractual
               relationship, In Thompson Coal Co., for example, the Supreme
               Court 'declined to find a prospective contractual relationship
               based on evidence that the parties had renewed a year-to-year
               lease for mineral rights for ten consecutive years ... Likewise, in
               Strickland [v. Univ. ofScranton, 700 A.2d 979, 985 (Pa. Super.
               Ct. 1997),] this Court [i.e., the Superior Court] refused to
               acknowledge a prospective contractual relationship when a
               university administrator's contract was not renewed after
               almost twenty-five years on the job.

Phillips, 959 A.2d at 429.

       Foster is illustrative: in that case, the appellant had merely alleged that the defendant

had "interfered with [his] existing and prospective contracts," which the Superior Court

noted was "the extent of the information pled as to the contacts [sic]." 2 A.3d at 666. The.

court further observed, "Significantly, this paragraph fails to even delineate between which

contractual relationships were existing and which were prospective. No dates or specifics are

listed regarding existing contracts. Additionally, no facts are set forth to support an inference

that there was a reasonable probability that Appellant would enter a contract with any of the

named entities."      Id.   The court finally concluded, "This paragraph is wholly deficient

because it does not provide a scintilla of information regarding the purported contractual

relationships." Id.

       While the tortious interference with prospective contractual relations claim in Foster
                             ..    .
had been disposed of at the preliminary objections stage, and the lis sub Judice has reached

summary judgment, the cases are remarkably similar in that Plaintiff has failed to clarify up



                                          9
to the point of summary judgment just which contracts �ere existing and which were

prospective; we have been directed to no dates or specifics; and only the barest scintilla of

information regarding purported prospective contractual relations has been adduced:

Plaintiff's bald assertion that he "believes" he would have treated prior and potential patients

at Somerset Hospital had he retained his privileges (Pl.'s Br., Ex. B, at 17); and his expert

report that neither supports this proposition nor states the basis for this opinion (Pl.'s Br., Ex.

E, at   1   138), and, moreover, where the expert report does support this proposition, its basis

leads back to Plaintiff's bare assertions (Pl. 's Br., Ex. E, at 144). See also Pl. 's Br. 8.

            Because this case is currently at a further stage than was Foster (i.e., summary

judgment in contrast to preliminary objections); Plaintiff has adduced as little evidence here

as the appellant had in Foster; and, in Foster, the appellant's claims were dismissed at that

earlier stage based on a commensurate amount of evidence, we find now that Foster controls

the outcome here, and summary judgment must be granted to Defendants.

            Our determination is further supported by Phillips, where the Superior Court affirmed

the trial court's granting of summary judgment to the defendants as to the same claim sub

Judice. The plaintiffs in Phillips alleged a prospective contractual relationship based on a

twenty-year "longstanding uninterrupted relationship" with ·a third party, to which the
                                         /



Superior Court responded, "These points, while supported by the record, amount merely to

an assumption of a future contractual relationship based upon evidence of an existing

contractual relationship. As Thompson Coal Co. and Strickland demonstrate, however, this

evidence is insufficient as a matter of law to establish a 'prospective contractual

relationship."' 959 A.2d at 429 (emphases in original). Moreover, as Defendants correctly

note, "The mere fact that Dr. Novak's patient volume decreased following the termination of



                                             10
his Somerset Hospital privileges does not state a claim for intentional interference with

existing or contractual relations under Pennsylvania law," because Dr. Novak's patient

volume could have declined based on any number of factors, and no evidence was presented

to support a claim that Plaintiff would have entered into any particular contract.

       As noted �.upra, Plaintiff admitted at argument, "[I)t's impossible to say what his

prospective contracts are. Everyone in the region is a prospective contract because anyone in

the region could at a moment's notice·need his services." It seems that Plaintiff is thus

requesting that we assume that every person in the region is a prospective contract, and that,

therefore, Dr. Novak's decrease in patient volume represents his actual decrease in

prospective contracts. Plaintiff's reasoning relies on too much that is amorphous, when it is

clear that our courts require hard evidence of prospective contracts.       Plaintiff's position

reveals an assumption of future contracts based on existing contracts, or, even further

removed, past contracts, which is impermissible, as discussed above.

       Because Plaintiff has presented no concrete evidence as to the prospective contracts

that were allegedly interfered with, we find it unnecessary to analyze the remaining elements

of this claim, and Defendants' motion for summary judgment is granted as to Count IV.


       B. Breach of Contract

       In Count V, Plaintiff asserts a breach of contract claim against only the Hospital,

based on the suspension of his clinical and staff privileges, there allegedly having been no

"corresponding need for immediate action to protect the life of one or more of its patients,

employees or other person]s] present at the Hospital," and there also having been no

compliance with Articles 7.1.2, 7.1.3, 7.1.4, 7.2.1, and "other terms and conditions of the

Medical Staff Bylaws," as well as the "JCAHO [Joint Commission on Accreditation of

                                         11
 Healthcare Organizations] standards." Compl.      11   136-38, 143-44. Defendants argue that

 there was no breach, or, alternatively, that they are immune from liability pursuant to the

 Health Care Quality Improvement Act ("HCQIA"), 42 U.S.C. § 111 ll(a)(l) et seq. Defs.'

 Mot. 2-3; Defs.' Br. 8-16.

        Plaintiff rejoins, "Defendants' immunity, of course extends only to monetary

 damages under the Act; however, Dr. Novak seeks significant nonmonetary damages from

 Defendants as a result of their conduct, including reinstatement of his privileges at Somerset

Hospital, and a complete retraction of any derogatory data in any data bank submitted as a

result of Defendants' conduct." Pl.'s Br. 23.

        However, Plaintiff's complaint does not contain a request for this nonmonetary relief.

After the allegations pleaded in Count V, Plaintiff stated, "WHEREFORE, Plaintiff Victor F.

Novak II, M.D., F.A.C.S., respectfully requests that the Court enter judgment in his favor and

against Defendant Somerset Hospital in an amount in excess of $75,000, exclusive of costs of

suit, a reasonable attorneys' fee and prejudgment interest." Compl. 20-21. There is no trace

of requests for equitable relief, nor injunctive relief, nor for any type of nonmonetary

damages to be found in the Complaint.

        Pa.R.C.P. 1021 (a) states, "Any pleading demanding relief shall specify the relief
                                    ,.
sought. Relief in the alternative or of several different types, including an accounting may be

demanded." See also Martindale Lumber Co. v. Trusch, 681 A.2d 803, 805-06 (Pa. Super.

Ct. 1996) (noting a distinction in case law between equitable remedies and remedies at law,

and observing that, where only one type of relief is requested in the complaint, courts decline

· to award the other, omitted, type of relief) (citing Holiday Lounge, Inc. v. Shaler Enterprises

Corp., 272 A.2d 175 (Pa. 1971); Holt's Cigar Co. v. 222 Liberty Asso�s., 591 A.2d 743 (Pa.



                                          12
    Super. Ct. 1991); Christian v. Johnstown Police Pension Fund Ass'n, 218 A.2d 746 (Pa

    1966); and Pa.R.C.P. 102l(a)).      In other words, where the only relief demanded in a

complaint is monetary damages, a court of equity does not have jurisdiction to award

equitable relief. Id. at 806 (synopsizing the holding from Holt's Cigar Co., 591 A.2d 743).

          It is clear .that the nonmonetary damages Plaintiff claims he is seeking, which he in

fact has not pled, would constitute a request for equitable remedies.'                   Thus, Plaintiff

requested only a remedy at law (i.e., monetary damages), and not equitable relief (i.e., the

nonmonetary relief referenced in his brief); therefore, this Court is without jurisdiction to act

as a court of equity, and consequently will not consider awarding nonmonetary damages.

This means that if the Hospital's immunity is established pursuant to the HCQIA, Plaintiff

cannot evade this immunity by now alleging that he is seeking relief not precluded by the

HCQIA.

          We begin with a presentation of the HCQIA and its scope, before applying it to.

Plaintiffs breach of contract claim. If any part of Plaintiffs claim falls outside of the scope

of HCQIA immunity, we will then move onto Defendants' next argument, namely, that

Plaintiffs adduced evidence, as a matter of law, does not establish a breach of contract. It

bears repeating that Count V is asserted against only Somerset Hospital.
                                         /




             1. The Health Care Quality Improvement Act

                 a. The Policy Behind the Act

          Legislative history reveals that Congress passed the Healthcare Quality Improvement

Act of 1986, 42 U.S.C ... §§ 11101-11152, to "improve the quality of medical care by


2
  "Equitable remedy" being defined as, a "remedy, usu. a nonmonetary one such as an injunction or specific
performance, obtained when available legal remedies, usu. monetary damages, cannot adequately redress the
injury." Black's Law Dictionary 1485 (10th ed.).

                                             13
encouraging physicians to identify and discipline physicians who are incompetent or who

engage in unprofessional behavior." Matthews v. Lancaster Gen. Hosp., 87 F.3d 624, 632

(3d Cir. 1996) (internal quotations and citation omitted). Congress "believed incompetent

physicians could be identified through 'effective professional peer review,' which it chose to

encourage by granting limited immunity from suits for money damages to participants in

professional peer review actions." Id.

       Congress also used the HCQIA 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 by creating an obligation to report professional

review sanctions to the Secretary of the Department of Health and Human Services." Id.

(internal quotations and citations omitted).

       Because Congress "believed the threat of private money damage liability under

Federal laws, including treble damage liability under Federal antitrust law, unreasonably.

discourages physicians from participating in effective professional peer review," id. (internal

quotations and citations omitted), it also intended that the Act "deter antitrust suits by

disciplined physicians," by providing the aforementioned immunity, and by also containing a

fee-shifting provision.
                                     I'



               b. Generally Relevant Provisions of the Act

       The HCQIA provides for immunity from monetary damages as follows:

               (1) Limitation on damages for professional review actions

               If a professional review action ( as defined in section 11151 (9)
               of this title) of. a professional review body meets all the
               standards specified in section 1 ll 12(a) of this title, except as
               provided in subsection (b) of this section [relating to a finding
               by the Secretary of noncompliance on the part of a professional
               review body to report information per section 1 l 133(a) of this


                                          14
               title]-

                  · (A) the professional review body,

                   (B) any person acting as a member or staff to the body,

                   (C) any person under a contract or other formal agreement
                   with the body, and

                   (D) -ruiy person who participates with or assists the body
                   with respect to the action,

               shall not be liable in damages under any law of the United
               States or of any State ( or political subdivision thereof) with
               respect to the action ....

42 U.S.C. § 1111 l(a)(l).

       While inununity for the professional review body and related persons is governed by

§ 1111 l(a)(l), immunity for persons who provide information to professional review bodies

is governed by § 11111 (a)(2), which states,

               Notwithstanding any other provision of law, no person
               (whether as a witness or otherwise) providing information to a ··-
               professional review body regarding the competence or
               professional conduct of a physician shall be held, by reason of
               having provided such information, to be liable under any law
               of the United States or of any State (or political subdivision
               thereof) unless such information is false and the person
               providing it knew that such information was false.

42 U.S.C. § 11111 (a)(2) (emphases added). As is clear from the statutes quoted supra, there

are two classes for purposes of establishing immunity, and two different standards. For a

professional review body, its members, persons contracting or otherwise in agreement with,

or who participate with or assist the body, immunity from liability is conditioned on the

review action (1) being � professional review action, as statutorily defined; and (2) the

professional review body meeting the standards outlined in § 11112(a). However, persons

who merely provide information to the professional review body only need do so without


                                         15
knowingly conveying false information in order to be granted immunity. See also Babb v.

Centre Cmty. Hosp., 47 A.3d 1214, 1227-28 (Pa. Super. Ct. 2012). Because Count V is

alleged against only the Hospital, immunity depends on compliance with § 11111 (a)(l) and

its two requirements, discussed supra.

        A "professional review action" is statutorily defined as

                [A]n action or recommendation of a professional review body
               which is taken or made in the conduct of professional review
               activity, which is based on the competence or professional
               conduct of an individual physician (which conduct affects or
               could affect adversely the health or welfare of a patient or
               patients), and which affects (or may affect) adversely the
               clinical privileges, or membership in a professional society, of
               the physician. Such term includes a formal decision of a
               professional review body not to take an action or make a
               recommendation described in the previous sentence and also
               includes professional review activities relating to a professional
               review action.

42 U.S.C. § 11151 (9). Certain exceptions apply, meaning that an action "is not considered to

be based on the competence or professional conduct of a physician [ and it is therefore not a

"professional review action"] if the action is primarily based on" any of five enumerated

reasons, discussed infra, as applicable. §§ 11151 (9)(A)-(E).

       For immunity to be granted to professional review bodies, a professional review

action must be 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 physicianinvolved 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


                                          16
                        after meeting the requirement of paragraph (3).

42 U.S.C. § l ll 12(a).

         Furthermore, "[a] professional review action shall be presumed to have met the

preceding standards necessary for the protection set out in section 11111 (a) of this title unless

the presumption is rebutted by a preponderance of the evidence." Id. As the Third Circuit

Court of Appeals has noted, "This presumption results in an unusual standard for reviewing

summary judgment ... under the Act. In a sense, the presumption language ... means that the

plaintiff bears the burden of proving that the peer review process was not reasonable."

Matthews, 87 F.3d at 633 (internal quotations and citation omitted) (emphasis in original).

That is, the plaintiff bears the burden of "producing evidence that would allow a reasonable

jury to conclude that the Hospital's peer review disciplinary process failed to meet the

standards of the Act." Id. (internal quotations, citations, and brackets omitted).

         Immunity for professional review bodies, pursuant to § l 1112(a)(l), is governed by.

an objective standard.' Although we elucidate the objective standard as it applies to each of

the prongs of§ 11112(a)(l), it holds for all prongs that "a defendant's subjective bad faith is

irrelevant under§ l 1112(a) .... " Matthews, 87 F.3d at 635. See also Babb, 47 A.3d at 1226

(stating, "Courts reviewing the applicability of HCQIA immunity have made clear that a
                                              ?



party's subjective motivation is irrelevant to the objective test of whether the professional

review action was reasonable.").

         With these principles stated, we move on to Plaintiffs specific allegations.

                  c. Plaintiff's Allegations


3
  In contrast to § 11 l l 1(a)(2), which, as discussed above, requires inquiry into the subjective mental state of the
alleged wrong-doer in order to ascertain whether the person knowingly provided false information to a
professional review body.


                                                   17
                  i.   Plaintiff Was Not Subject to a Professional Review Action

       Plaintiff first argues that he was not subject to a professional review action: "The

revocation of Dr. Novak's privileges at the Hospital was not primarily based on his

competence or professional conduct. .. a reasonable jury could find that Defendants revoked

Dr. Novak's priv��eges for anticompetitive purposes and have done everything in their power

to ensure that revocation stands." Pl. 's Br. 24-25. Plaintiff further alleges that Defendant

Farrell wanted Plaintiff removed from the hospital due to personal animus.         Id. at 25.

Plaintiff also alleges that Sadaat and Go "functioned as Defendant Farrell's puppet[s]" for

alleged anti-competitive purposes. Id.

       As defined more fully supra, a "professional review action" is "an action or

recommendation of a professional review body ... based on the competence or professional

conduct of an individual physician (which conduct affects or could affect adversely the

health or welfare of a patient or patients), and which affects (or may affect) adversely the.

clinical privileges ... of the physician." 42 U.S.C. § 11151(9). An action or recommendation

of a professional review body does not fall within this definition if the action or

recommendation is based on any one of the following:

              (A) the physician's association, or lack of association, with a
                  professional society or association,

              (B) the physician's fees or the physician's advertising or
                  engaging in other competitive acts intended to solicit or
                  retain business,

              (C) the physician's participation in prepaid group health plans,
                  salaried employment, or any other manner of delivering
                  healthservices whether on a fee-for-service or other basis,

              (D) a physician's association with, supervision of, delegation
                  of authority to, support for, training of, or participation in
                  a private group practice with, a member or members of a


                                         18
                    particular class of health care practitioner or professional,
                    or

                (E) any other matter that does not relate to the competence or
                    professional conduct of a physician.

42 U.S.C. §§ 1 l 151(9)(A)-(E).

       While Plaintiff does not expressly state which of these enumerated exceptions

applies, it seems clear that none of (A) through (D) are being alleged; however, Plaintiff does

cite language from subsection (E). · PL 's Br. 24.          Therefore, we proceed with the

understanding that Plaintiff alleges that he was subject to unfavorable treatment based on

matters not relating to his competence or professional conduct (that is, personal animus

and/or anticompetitive concerns), which falls generally under subsection (E).

       Plaintiff's argument is reminiscent of one employed in Gordon v. Lewistown Hosp.,

423 F.3d 184, 192-94 (3d Cir. 2005), where Plaintiff Gordon was an ophthalmologist who

took out several negative ads about bis competitor at the hospital where he practiced; ..

disparaged his colleague's skills to a patient; sent a letter to the hospital's board disparaging

that same colleague; made harassing calls multiple times to patients in an attempt to dissuade

them from seeking treatment with his colleague; and swore at and improperly addressed a

nurse in the presence of patients. Gordon ultimately had his privileges revoked. Id. at 197.
                                      ,•


       Gordon sued, bringing multiple claims against multiple parties; one of which was the

hospital, against which he alleged, inter alia, multiple antitrust violations. Id. at 198. The

trial court entered summary judgment in favor of the hospital on most of Gordon's claims.

       Gordon, on appeal, "attemptjed] to avoid application of [HCQIA's] presumption of
                           ..
immunity by attacking the actions taken against him on grounds that they were not

'professional review actions' within the meaning of the HCQIA .... " Id. at 202-03 There,



                                           19
Gordon argued that "he only could be expelled from the medical staff as a result of a

professional review action if it was based on either his competence or his professional

conduct, which conduct affects or could affect adversely the health or welfare of a patient or

patients," and because his "professional competence has never been in dispute, Gordon

argues that he �as expelled for [other] conduct [i.e., making harassing phone calls to

patients, etc.]," and the burden of proof was on the hospital to show that this conduct "could

affect adversely the health or welfare of-patients." Id. at 203.

        The Third Circuit rejected Gordon's argument: "Gordon simply cannot escape the

ramifications of his conduct by relying on a tortured construction of the statute that ignores

the fact that, at all levels of process, his conduct was found to adversely impact patient health

or welfare." Id. at 204. So, despite Gordon's assertions of anticompetitive motivations and

conduct, which formed the basis of eight federal antitrust claims, the Third Circuit looked to

the asserted basis for the hospital's action, and determined that the basis asserted was.

conduct found by health care professionals and the governing body of the hospital to have, or

potentially have, an adverse impact on patient health or welfare. Id. at 204.

       In other words, the hospital's action, to fall under the statutory definition of

"professional review action," must be based on a "matter" related to the competence or
                                      /



professional conduct of a physician, with "matter" being defined commonly as "what a thing

is made of; constituent substance or material," Webster's New World College Dictionary

(4th ed. 2007), or perhaps less abstractly, "[a] subject under consideration, esp. involving a

dispute or litigation .... " Black's Law Dictionary (I Oth ed. 2014). Thus, if the substance

constituting the basis for the hospital's contested action--or, put more plainly, if the subject

under consideration, which forms the basis for the hospital's contested action-relates to the



                                          20
"competence or professional conduct of a physician," then it is a professional review action.

This interpretation is supported by case law, as discussed supra, and it also has the benefit of

being consistent with the objective standard of review required by the statute and relevant

case law.

        Here, there is no doubt that Somerset Hospital performed its review of Plaintiff based

on professional conduct that either did, or could, adversely affect the health or welfare of

patients. Plaintiff admitted that he replaced ICD generators without privileges, though he

emphasized that he had believed at the time that he had both the "privileges and the

competency" to do so. See Pl.'s Am. Counter-Statement of Material Facts Not in Dispute,

response to 139, Oct. 30, 2014 (originally filed in No. 3:07-cv-003040-DSC (W.D. Pa. July

19, 2013)).

        The Medical Executive Committee Meeting Minutes (Sep. 14, 2005) reveal that there

was concern arising from these procedures; this concern was discussed at the meeting; and

Dr. David Armstrong, the Chief of Surgery, opined that Plaintiff "did not meet (the] standard

of care in this case ... used poor judgment ... (a] report was not done ... [and he] should at least

receive a reprimand in writing."

       Plaintiff's procedures were again discussed at a subsequent Medical Executive

Committee Meeting (Sep. 21, 2005), the minutes of which reveal that Plaintiff had had a

prior history of questionable conduct including, inter alia, sexual misconduct with a patient,

use of "[n]on-approved FDA devices," and a formal complaint filed by a patient whom

Plaintiff had refused to perform surgery on due to lack of insurance and insufficient funds.

The committee decided that "there was very poor judgment used by the surgeon," and many

of the members expressed concern that Plaintiff had been unprepared for the possibility of



                                           21
any ensuing problems occurring during performance of the ICD procedures at issue. As one

member articulated, dangers included "hemorrhage, infection of the lead area and the

inability to perform testing at Somerset Hospital. 'Was he surgically competent-yes, but

clinically-no.'" Id. at 3.

        The same. subject matter was at issue during the Medical Executive Committee

Meeting of October 12, 2005, and was the subject of the Committee's November 7, 2005

report to the Board of Directors of Somerset Hospital, as well as the Board of Directors

meetings occurring on November 14 and 21, 2005 (the latter of which being the meeting at

which it was resolved that Plaintiffs privileges should be suspended), in addition to all of the

subsequent internal administrative procedures.

        We find there is no genuine issue of material fact here-Somerset Hospital's actions

all related to the question of whether Plaintiff had exercised poor judgment in performing the

ICD generator-replacement procedures, and whether he had put patients at risk in so-doing..

in addition to Plaintiffs pattern of poor conduct relating to patient-care. In other words, as in

Gordon, notwithstanding Plaintiffs allegations of improper motivations and/or conduct on

the part of Defendants, the "matter" forming the basis of the Hospital's actions clearly related

to professional conduct which would or could adversely affect the health or welfare of
                                     ,.
patients.   Therefore, the Hospital's actions constitute "professional review action" as

statutorily defined.

                   ii.   None of§ 11112(a)'s Four Prongs Are Satisfied

        As discussed supra, Somerset Hospital's liability is contingent on § 11112(a) being
                           ..
satisfied, that is, the professional review action must have been taken

               (1) in the reasonable belief that the action was in furtherance of
                   quality health care,


                                          22
                (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 requirement of paragraph (3).

42 U.S.C. § 11112(a).

       Plaintiff argues that "[g]enuine issues of material fact exist such that a reasonable jury

could conclude that Defendants have not satisfied any of the four prongs." PL' s Br. 28. We

again note that while the relevant section of Plaintiff's brief references the plural Defendants,

the Complaint makes clear that the breach of contract count is only pleaded against Somerset

Hospital. See Compl. 19, 20.

       Plaintiff asserts that the first prong is unsatisfied because he has adduced evidence

that anticompetitive considerations factored into Somerset Hospital's professional review

action. Plaintiff's argument proceeds as follows:

               Courts ... have ... explained that [the HCQIA immunity] inquiry
               'imposes an objective standard' such that a defendant's
               'subjective bad faith is irrelevant' to the analysis, [Matthews,
               87 F.3d at 635] ... [but] [d]espite such sweeping language,
               courts evaluating claims under the Act actually focus on the
               motivations behind the professional review action, finding
               immunity to be appropriate, for example, where a physician
               'has not presented evidence that the ... action taken by [the
               hospital's board] was motivated by anything other than a
               reasonable belief that it would further quality health care.' Id.
               (emphasis added) .... Dr. Novak has presented such evidence.

Pl.'s Br. 29. · Concisely stated, Plaintiff argues that while the case law appears to rely on a

thoroughly objective standard of inquiry as to the reasonableness of a hospital's actions, there

is in actuality a subjective inquiry that also occurs; and where anticompetitive or other


                                           23
inappropriate considerations factor into a hospital's decision-making, the first prong of the

test, i.e., the "the reasonable belief that the action was in furtherance of quality health care"

requirement, is not met.

        We reject Plaintiff's reading of the case law. Again, we reiterate that under the

BCQIA, the plaintiff bears the burden of proving that the peer review process was not

reasonable. Matthews, 87 F.3d at 633. There is a presumption that the professional review

action meets the required standards for immunity, and Plaintiff must rebut this presumption

by a preponderance of the evidence. Id.; Matthews, 87 F.3d at 633. (So, for purposes of

summary judgment, Plaintiff must adduce evidence from which a jury could reasonably infer

that Plaintiff had rebutted this presumption by a preponderance of the evidence.)

       Matthews itself noted that § 11112(a)(l) is satisfied "if the reviewers, with the

information available to them at the time of the professional review action, would reasonably

have concluded that their actions would restrict incompetent behavior or would protect.

patients." 87 F.3d at 635 (internal citation and quotations omitted). See also Brader v.

Allegheny Gen. Hosp., 167 F.3d 832, 840 (3d Cir. 1999) (stating, "Like other circuits, we

have adopted an objective standard of reasonableness in this context. .. Therefore, the good or

bad faith of the reviewers is irrelevant") (internal citations omitted). Even more clearly
                                     ,·

stated, "The real issue is the sufficiency of the basis for the [Hospital's] actions." Id.

(internal quotations and citation omitted) (brackets in original). Assertions of "bad faith or

anticompetitive motives are irrelevant to the question of whether a decision was taken in a

reasonable belief that it would further quality health care. Instead, the court must consider
                           .
the adequacy of the basis for the decision made." Bakare v. Pinnacle Health Hosp., Inc.,

469 F. Supp. 2d 272, 287-88 (M.D. Pa. 2006) (internal quotations and citations omitted)



                                          24
(emphasis added).

          Our Superior and Supreme Courts have also elucidated this standard:

                 In an HCQIA action, plaintiffs are not permitted to introduce
                 evidence of bad faith of the participants in the peer review
                 process. The 'reasonableness' requirements of § l l l 12(a)
                 create an objective standard, rather than a subjective good faith
                 standard ... Thus, the alleged bad faith of the participants in the
                 peer review process is immaterial to determining whether these
                 participants are entitled to immunity under the HCQIA.
                 Rather, the inquiry is whether a person presented with the
                 same information that·was placed before the peer review
                 body would reasonably have concluded that" their actions
                 would restrict incompetent behavior or would protect
                 patients ....

Babb, 47 A.3d at 1226 (Pa. Super Ct. 2012) (citing Manzetti v. Mercy Hosp. of Pittsburgh,

776 A.2d 938, 946-47 (Pa. 2001)) (emphasis added).

          As the foregoing presentation makes indisputably clear, evidence of subjective bad

faith is irrelevant. The real test is: could a hospital-which was not acting in bad faith, or put

otherwise, notwithstanding its bad faith-have been able to form a reasonablebelief that the

contested action was in the furtherance of quality health care?

          By focusing on irrelevant concerns, namely, the Hospital's alleged subjective bad

faith, Plaintiff has failed to rebut the presumption of reasonableness in that he has not even

attempted to argue that the Hospital's stated basis for its action was insufficient to justify the

action.    Since Plaintiff has made no argument in this regard, and has directed us to no

evidence supporting this contention, we find the first prong is satisfied.

          Plaintiff next argues that the second prong is unsatisfied, i.e., that the totality of the

process leading up to the Board's professional review action did not evince a reasonable

effort to obtain the facts of the matter. Pl.'s Br. 30. Plaintiff alleges the following in support

thereof: (1) the investigation into Plaintiff "began with the Administrative Group, which did


                                            25
not include a physician member and which lacked knowledge of the Kates approval"; (2) one

physician receiving the group's findings was Dr. Sadaat, a competitor of Plaintiff; (3)

defendants Farrell and Sadaat concluded their investigation without informing the Medical

Executive Committee of the Kates approval; and (4) the Board's initial decision to revoke

Plaintiffs privileges was without knowledge of Kates' approval of the procedure. Pl.'s Br.

30.

        Plaintiff acknowledges that the relevant inquiry under the second prong is "whether

the totality of the process leading up to the Board's professional review action ... evidenced

a reasonable effort to obtain the facts of the matter." Pl.'s Br. 30 (citing Matthews, 87 F.3d at

637) (emphasis added). So Plaintiffs second allegation, that Dr. Sadaat participated in some

capacity in the investigation, is irrelevant as it goes toward Dr. Sadaat's alleged subjective

bad faith rather than whether the entire review process leading up to the Board's action

evinced a "reasonable effort to obtain the facts of the matter."

       Plaintiff likewise does not explain how his first allegation, i.e., the fact that a

physician was not involved in the nascent stages of the investigation, tainted the "totality of

the process leading up to the Board's profession�! review action," especially given that after

this initial Administrative Group4 investigation, five Medical Executive Committee meetings

occurred (on September 14 and 21, October 12, and November 2 and 7, 2005) where, at least

for the first three meetings, anywhere from seven to ten medical doctors were present, many

of whose qualifications and objectivity have not been assailed by Plaintiff, who all discussed

the case and agreed that Plaintiff demonstrated poor judgment in performing the procedures
                             ..      .
at issue here, see e.g., MEC Mtg. Minutes 3-4, Sept. 21, 2005, and which culminated in a

Report of the Medical Executive Committee Concerning Victor Novak, M.D., which

0r Fact-Finding Task Force, as it is referred to in the Medical Executive Committee Meeting Minutes.
4



                                              26
contains factual background, a statement of the issues, a description of the procedural process

to date, and findings, which we excerpt:

               1. There are a number of discrepancies in critical documents
                  (e.g., patient.consent forms, OR scheduling requests, and
                  dictated operative notes) that complicate the analysis of this
                  process and cast some confusion and doubt as to what
                  actually occurred and when it occurred. [Additional details
                  omitted.]

               2. With all of the key documents being wrong or suspect to
                  one extent or another, it is difficult to ascertain exactly
                  what transpired. Suffice it to say however, that it is
                  troubling and out of the ordinary course that every routine
                  hospital/medical event is wrong or compromised.

               3. The committee took note of past proceedings and episodes
                  involving Dr. Novak, specifically as these past events
                  involved issues of judgment. ...

              4. Dr. Novak's presentation was not particularly effective or
                 consoling. Committee members were seeking some self-
                 recognition or acknowledgment that he may have made a
                 mistake or that he may have inadvertently ventured into a
                 more complicated area. However, Dr. Novak asserted that ·· -
                 other than some changes involving his staffs processing of
                 forms, he did nothing wrong and would do this the same
                 way in the future.

              5. Regarding this particular case, the           committee    has
                 determined that he used poor judgment.

              6. Regarding this particular case, the committee believes that
                 he deviated from the standard of care by: (a) not consulting
                 a cardiologist and (b) not testing or adequately arranging
                 for the post-insertion testing of this device ....

                  Dr. Novak appeared to be focused exclusively on the
                  mechanical aspect of replacing the ICD, rather than the
                  complex issues surrounding whether the replacement
                  should .be done in the first instance and what should be
                  done afterward. Dr. Novak asserted it is equally acceptable
                  to test or not to test for the patency of the device after
                  insertion. Dr. Chaudhuri asserts that the standard among
                  [ electrophysiology] physicians is to test the device

                                           27
                     immediately after a generator replacement (unless the
                     patient is too frail to survive the testing).

                       It seems illogical to this committee that a device of this
                       importance was inserted, but it was either not tested or that
                       no consult was sought from a cardiologist to determine
                       whether post-insertion testing was required. Either Dr.
                       Novak does not know what the standard is, or he assumes
                     . that he does and he is wrong ....

              7. Finally, and most importantly, considering the elements of
                 this matter in conjunction with other prior episodes, the
                 committee has substantial concerns with Dr. Novak's
                 demonstrated pattern of not seeming to understand the
                 limitations of his ability and the boundaries of acceptable
                 practice for a general surgeon in a community
                 hospital ... This inability to accept or understandj] his
                 limitations has potentially serious implications. Surgeons
                 are measured by two parameters: their surgical technique
                 and their surgical judgment. The latter means knowing
                 when to operate and when not to operate. Dr. Novak
                 doesn't seem to comprehend what he doesn't know. He
                 seems to be unaware of or does not adequately appreciate
                 the medical complications of the procedures that he is, from
                 a technical standpoint and surgical technique, able to
                 perform.       Many of the complication and patient .. -
                 management issues are beyond his level of training and
                 experience.

                     Uris is a dangerous tendency in a surgeon. It is also
                     difficult to monitor.    The Committee thought about
                     imposing a proctoring requirement. But a proctoring
                     arrangement is impractical and not well-suited to address
                     this underlying concern.

              8. [ ... ]

              9. A number of physicians on the committee expressed that
                 they have lost faith in Dr. Novak's judgment and feel he
                 has the potential to cause serious problems in the future.

              1 o.   [ )
              11. [      ]

MEC Report 3-5, Nov. 7, 2005 (emphasis in original).

                                           28
        The remainder of Plaintiffs argument centers on Dr. Kates' "approval" of the

procedure(s). We find that Kates' approval is not germane to the question of whether the

professional review action evinced a reasonable effort to obtain the facts of the matter.

While the parties agree that an operating r?om staff member called "Dr. Kates, Chairman of

the Hospital's Credential Committee, who told her to go ahead with the August 9, 2005

surgery,"-and Dr. Kates himself claimed that he "gave [his] approval as Chairman of the

Credentials Committee, for [Plaintiff] to proceed," PL 's Br., Ex. A-the parties also agree

that "Dr. Novak was unaware of Dr. Kates' approval at the time he performed the August 9,

2005 surgery," meaning that even if Dr. Kates approved the procedure, Plaintiff would still

have been unaware that he had apparently been given permission to move forward with, at

the very least, the first surgery. Pl.'s Am. Counter-Statement, response to ,I� 46, 47.

       We also note, according to Dr. Kates' letter, he clearly believed that his "approval as

Chairman of the Credentials Committee" was relevant to whether Dr. Novak was authorized.

to perform these procedures, and that "issues such as this[,] concerning privileges, proceed

with an investigation in the Credentials Committee[;] [a] report is then sent to the MEC."

Pl. 's Br., Ex. A. The Fair Hearing Panel acknowledged and addressed this argument in their

findings and recommendations:

               It has been suggested By Dr. Novak and his supporters that it
               was unusual for the Medical Executive Committee (11:EC) to
               be involved in what has been perceived to be a credentialing
               issue. The Credentials Committee cannot unilaterally grant
               privileges that are not permitted at this institution. The
               Hospital learning of procedures that were in direct violation of
               the Department of Health regulations, convened a meeting with
               the President of the Medical Staff, Chairman of the Department
               of Surgery, and certain administrative personnel involved in
               surgical reviews or risk management.

Report of Findings and Recommendations of Hearing Panel, May 22, 2006. While the issue

                                         29
of Kates' approval was decided by the Panel after the Board's action, the Panel's conclusion

is probative as to whether there had previously been a reasonable effort made to obtain the

facts of the matter.         Kates had no authority to give approval, and, procedurally, an

investigation of this matter, contrary to Kates' representations, would not have initiated in the

Credentials Committee,

         So, in sum: Kates' approval was irrelevant to the issue of whether Plaintiff had or

believed he had permission to perform at least the first procedure, since Plaintiff admitted

that Kates' approval had not been conveyed to him prior to performing the first surgery.

Moreover, the Fair Hearing Panel rejected the argument that Kates' approval was relevant, or

that Plaintiff's privileges to perform this procedure were more properly a credentials issue

that would be investigated by the Credentials Committee ( of which Kates was the chairman,

which would thereby have made Kates' belief at the time of the procedures, that Plaintiff was

permitted to perform them, more relevant).                Therefore, while Kates' approval was not.

communicated to the Board, his approval is of such low probative value that we cannot find

that the Board's failure to consider it is equivalent to a failure to make a reasonable effort to

obtain the facts of the matter. 5 So, the fact that Kates' role was apparently not discussed

prior to the Board's professional review action does not mean that the Board failed to make a
                                           /



reasonable effort to obtain the facts of the matter.

        For the reasons stated directly above, we finct" that Plaintiff has failed to adduce

evidence to rebut the HCQIA's presumption that the Hospital satisfied its reasonableness



5
                              A
  Plaintiff argued that Exhibit is atta�hed to his brief because "the letter from Doctor Kates was withheld from
the medical executive committee. So, if Doctor Kates' opinion wasn't relevant or able to overrule health
regulations, maybe the question to ask is then why was it withheld." Arg. Tr. 13. Plaintiff's question contains
its answer: Dr. Kates' opinion was not relevant for the reasons discussed supra; so, rather than question why it
was withheld, one could more reasonably ask why it should have been included.


                                                30
 requirement as to § l ll 12(a)(2).         And while this is sufficient for us to find that the §

    l l l 12(a)'s second prong remains satisfied, we also note that Defendants have bolstered their

position, despite being under no obligation by the statute to do so:

                  Dr. Novak was given ample opportunity to tell his side of the
                  story. The task force met with him on August 31, 2005, and
                  Dr. .Novak and his attorney attended and participated in the
                  November 2, 2005 MEC meeting. The MEC's extensive report
                  to the Board expressed its concerns over Dr. Novak's inability
                  or unwillingness to recognize his own limitations or the
                  limitations of the community hospital in which he practiced.

                   At its November 14, 20050 meeting, the Board considered the
                  .MEC Report and heard from Dr. Leonard Ganz, a Board
                   Certified Cardiologist and former Electro Physiology Professor
                   at UPMC, who educated the Board on ICDs and pacemakers.
                   At its November 21, 20050 meeting, the Board also heard the
                   presentations of eight of Dr. Novak's supporters on the medical
                   staff. The Board debated for over four hours before voting to
                  terminate Dr. Novak's privileges.

Defs.' Br. 14. See also Pl. 's Am. Counter-Statement, response to                 ,r 66. 6   The evidence as

well as Plaintiff's admissions corroborate Defendants' claims.                   See Pl.'s Am. Counter-

Statement, response to      ,r,r 49, 58, 66, 69-71;    Special Mtg. of the Bd. of Directors, Nov. 14

and 21, 2005 (Minutes). Because Somerset Hospital is presumed to have made a reasonable

effort to discern the facts of the matter; the Hospital has additionally explained just what

efforts it went through to determine what occurred; and Plaintiff has failed to adduce

sufficient evidence from which a factfinder could infer that Plaintiff has rebutted, by a

preponderance of the evidence, the statute's presumption of reasonableness, we find that §

l 1112(a)' s second prong is satisfied.

          Regarding the statute's third prong, Plaintiff argues that he never received "adequate

6
 Dr. Christopher Bonnet, a board-certified cardiologist and electrophysiologist specialist testified on Dr.
Novak's behalf, and opined that Plaintiff's treatment did not fall below an acceptable standard of care. Defs.'
Resp. to Am. Counter-Statement of Material Facts Not in Dispute 1� 220-21, and responses thereto.


                                                31
notice and an appropriate hearing," because

                 [t]he Fair Hearing Process was a sham. A reasonable jury
                 could and should be permitted to find that from the beginning,
                 the Board was going to affirm its revocation of Dr. Novak's
                 privileges no matter the evidence presented during the Fair
                 Hearing or the recommendation of the Panel. A show hearing
                 with no prospect of changing a result is inadequate regardless
                 of 1}1e notice provided or procedures used. Defendants should
                 not be entitled to take advantage of HCQIA immunity merely
                 because they permitted Dr. Novak to expend an enormous
                 amount of time and resources in a farce.

Pl. 's Br. 31.

        As discussed supra, Plaintiff alleged in his complaint multiple violations of the

Hospital's Bylaws, many of which related to "the plan of corrective action against Dr.

Novak." Compl.      1   136. However, as Plaintiffs brief illustrates, Plaintiff at this point is

aware that "HCQIA immunity attaches when the reviewing body satisfies the requirements

under HCQIA, regardless of its own policies and procedures," Bakare, 469 F. Supp. 2d at

290 n.33, which is presumably why Plaintiff relies now upon the allegation that the hearing

process was a "sham."

        However, Plaintiff has again not presented evidence sufficient to "overcome the

presumption that [Defendant] provided adequate due process within the ambit of HCQIA."

Id. Plaintiff has argued repeatedly that members of the Hospital were tainted by bad faith,

either because of their personal dislike of Plaintiff and/or anticompetitive concems.

However, as we have explained ad nauseum, the HCQIA's standard imposes an objective

standard, meaning we are concerned not with whether the Hospital was tainted, or possibly

tainted, at all by bad faith, but rather whether the Hospital's actions were reasonable, that is,

whether its actions were sufficiently supported by the facts. It is remarkable that Plaintiff

fails to argue that the facts do not support the suspension of his privileges, this being a


                                           32
conceptually separate inquiry from whether some bad faith entered, or may have entered, into

the decision-making process.

        The Board, in its resolution revoking and summarily suspending Plaintiff's clinical

privileges stated,

               The Board has received and discussed the report of
               the ... [MEC] describing the Committee's concerns relating to
               the replacement of ICD generators in two patients. It has also
               received. the input of a well known [sic] and respected
               electrophysiologist (who is not on the staff of the Hospital).
               The MEC has concluded that Dr. Novak demonstrated poor
               judgment and performed at a level that is beneath the
               acceptable standard of care in each of these cases by (i)
               performing a procedure for which he is not credentialed, (ii)
               not consulting a cardiologist, and/or (iii) not testing the devices
               post-insertion or actively arranging for follow up [sic] testing
               by a qualified cardiologist. Moreover, the Board is concerned
               that the documentation of these events is, at best, sloppily
               inaccurate and at worst, deliberately inaccurate (in an effort to
               disguise the nature of the procedure).

               The Board has also reflected upon an underlying theme in the
               MEC's report which is that Dr. Novak has demonstrated a --
               pattern of poor judgment in behavior and medical judgment,
               particularly as it relates to understanding the limits of a general
               surgeon in a non-urban community hospital. .. The Board is
               particularly troubled that to this day Dr. Novak appears not to
               recognize that he did anything wrong in connection with any of
               these serious incidents: The apparent sincerity of Dr. Novak's
               belief that his medical judgment is sound makes the Board
               more, not less, concemed that he will continue to stray beyond
               the proper bounds of his privileges and his competencies.

Special Mtg. of the Bd. of Directors 2-3, Nov. 21, 2005 (Minutes).           The Board having

explained why it resolved to take action, it further explained why it undertook the specific

remedy at issue here:

               The Board has considered other remedial measures, such as
               proctoring, pre-surgical review, and limiting his privileges to a
               list of specifically identified procedures. It is the Board's
               conclusion that these mechanisms are impractical. Moreover,


                                         33
                   armed with the sense of Dr. Novak's tendencies and pattern of
                   judgment, the Hospital is unwilling to accept a liability risk
                   attributable to either the inadvertent failure or the
                   circumvention of these remedial measures. Nor is the Board
                   inclined at this time to commit its financial and human
                   resources to implementing and enforcing a monitoring
                   protocol.

                   Finally, the Board believes that the recruitment of general
                   surgeons is impaired by the presence of a physician who is
                   under special surveillance and who has proven to be a difficult
                   colleague (e.g., refusing to cover, refusing to assume required
                   call coverages).

Id. at 3.

            The Fair Hearing Panel recognized that the Board "expressed reservations about the

practicality of such a monitoring process and the potential of hardships created by the

adoption of these restrictions," however, the Panel felt that Plaintiff had expressed sincere

remorse, and therefore ought to be provided "a last opportunity to demonstrate his desire to

be a productive member of this Medical Staff." Report of Findings and Recommendations of

Hearing Panel 16. The Panel therefore recommended that Plaintiff be subject to a monitoring

process for five years, with much of the administrative burden to be placed on Plaintiff. Id.

at 15-16.

            However, it was not just the Board's determination that a proctoring arrangement was

impractical. The MEC, in its report on Plaintiff, remarked,

                   Dr. Novak ... seems to be unaware of or does not adequately
                   appreciate the medical complications of the procedures that he
                   is, from a technical standpoint and surgical technique, able to
                   perform ... This is a dangerous tendency in a surgeon. It is also
                   difficult to monitor. The Committee thought about imposing
                   a proctoring requirement. But a proctormg arrangement is
                   impractical and not well-suited to address this underlying
                   concern ....

                   The Committee     is   not providing the Board with a specific


                                              34
               action sanction ... it believes that the Board is in the better
               position to apply a more global policy judgment by evaluating
               this incident in light of Dr. Novak's past performances, his
               pattern of misjudgments, his inability to acknowledge these
               misjudgments, and most importantly, from a policy
               perspective, the Boards [sic] willingness to continue to devote
               resources to the resolution of matters that are likely to reoccur
               in one fashion or another. The MEC cannot recommend a
               workable oversight program that will address the judgment
               weakness that it believes Dr. Novak has demonstrated on a
               number of occasions. For this reason, it believes that
               similar failures of judgment and blindness to boundaries
               will likely occur in the future. The committee cannot
               predict when they will occur or how serious each may be.
               The MEC acknowledges that it and the Hospital have devoted
               substantial resources to resolving the issues raised by Dr.
               Novak during his 11 year tenure at the Hospital.

MEC Report 6- 7 ( emphases added). As the MEC' s report illustrates, it was not just the

Board that believed that a proctoring arrangement would not be feasible.

       As the parties knew, pursuant to the Fair Hearing Plan, specifically Article 9.1, the

Board was to, within thirty days after the Fair Hearing Panel's report, "render its final written .

decision ... accepting or rejecting or modifying the recommendation of the [Fair Hearing

Panel] .... The Board's action on the matter shall be immediately effective and final." The

Board was under no obligation to reverse its decision based on the Fair Hearing Panel's

recommendation, and was entitled to, in its discretion, reject the recommendation.

       It is Plaintiff's burden to show that genuine issues of material fact exist from which a

factfinder could conclude that Plaintiff has rebutted by a preponderance of the evidenced the

presumption that the Hospital complied with the statute. Plaintiff has focused again on the

Board's alleged bad faith, however, he has not shown that notwithstanding this alleged bad
                           ..
faith, the Board's actions were unreasonable; this is especially the case where both the .tvfEC

and the Board agreed that proctoring is impractical, and both laid out their rationales in some



                                          35
detail.

          As we have observed above, "adequate notice and hearing procedures" must be

afforded to the physician involved in a professional review action, and the adequacy of notice

and hearing procedures, for purposes of HCQIA immunity, are not judged with reference to

the Hospital's own bylaws, but rather to the statute itself. Bakare, 469 F. Supp. 2d at 290

n.33.     The standards for "adequate notice and hearing" are elucidated in 42 U.S.C. §

l 1112(b). Yet Plaintiff has not cited to this section nor any of its subsections in his brief, nor

at oral argument, nor mentioned any procedural violations contravening the statute.            So,

again, Plaintiff has failed to adduce evidence rebutting the presumption that the Hospital

complied with the HCQIA.

          Plaintiff lastly argues that the Hospital has failed to meet the fourth immunity prong,

as "Defendants made no reasonable effort to obtain the facts and Dr. Novak did not receive

anything other than a sham hearing, lacking any capacity to change the Board's initial.

decision to revoke his privileges." PL 's Br. 31. It is clear that this is merely another way of

restating challenges to the second and third prongs of § l l 12(a), both of which were

addressed supra, and which we will not revisit again. See also id. (alleging that a reasonable

jury could conclude that the Hospital's action was "not warranted by the facts known after
                                       ,.
[a] reasonable effort to obtain facts and after [an adequate notice and hearing]," which

correlate to § 1112(a)(2), (3)) (brackets in original).

          Plaintiff additionally argues, "Certainly the Hospital's MEC did not believe [the

revocation of Plaintiff's privileges] to be appropriate, even without knowledge of the Kates'
                            ..
[sic] Approval. See MEC Meeting Minutes, attached as Exhibit C. Nor did the Panel believe

revocation was warranted." Pl.'s Br. 32.



                                            36
       While it is true that the MEC ultimately did not support the Board's decision to

revoke Plaintiff's privileges, the distribution of votes is revealing: four persons voted their

agreement with the Board; six persons disagreed with the Board; and one person abstained

from voting. Pl.' s Br., Ex. C at 2. The lvffiC did not express an opinion as to whether the

Board's action w�s based on a reasonable belief that the action was warranted by the facts

known, and mere disagreement with the Board's action does not support any inference of

unreasonableness; nor is the disparity between four and six votes large enough for us to draw

any such inference.

       As discussed supra, the Fair Hearing Panel recommended a proctoring remedy

instead of revocation of Plaintiff's privileges; because the Panel did not "believe revocation

was warranted," as Plaintiff puts it, we are invited to infer that the Panel's recommendation

means the Board was urueasonable to revoke Plaintiff's privileges. However, the Panel's

report contravenes Plaintiff's argument. The Panel expressly stated,

               By a majority of 4 of the 5 members of the Hearing Panel, the
               Hearing Panel concludes after a thorough review that the
               actions taken by the Board of Directors were appropriate in
               light of the information available to them at the time and that
               through the course of the fair hearing process, Dr. Novak has
               not demonstrated by clear and convincing evidence that the
               grounds upon which the Board acted lacked any factual basis
               and that the conclusions drawn were arbitrary, unreasonable or
               capricious.

Fair Hearing Panel, Report of Findings and Recommendations of Hearing Panel 17. The

Panel also emphasized that "this recommendation focus[es] on what appears to be Dr.

Novak's sincerity to refocus his practice in areas that are consistent with those of a general

s1:1Igeon at a community hospital," and, further, "Failure to adhere strictly to the

recommendations will disappoint this Hearing Panel and demonstrate a lack of recognition



                                         37
(of] the Hospital's primary goal, that being, safeguarding the health and welfare of this

community." Id.

         So the Panel itself, though it recommended lesser sanctions than the Board had

imposed, explicitly affirmed that the Board's actions were reasonable, and emphasized that

its, that is, the Panel' s, recommendation was based in large part on what it perceived to be

Dr. Novak's sincerity. Perhaps even more revealing, however, is a footnote included in the

Panel's report:

                  Certain members of the Hearing Panel advise that they were
                  prepared to confirm the revocation of privileges but, after
                  developing protective measures for the Hospital and its
                  patients, have agreed upon this compromised recommendation
                  to minimize the consequences upon Dr. Novak's ability to
                  practice bis profession and to allow him to demonstrate his
                  stated genuine care for his patients and the well-being of this
                  community.

Id. at 17 n.11.

        We therefore find that Plaintiff has adduced no evidence that the professional review

action occurred without a reasonable belief that the action was warranted.                      Therefore, §

l l 112(a)'s fourth prong is satisfied.7

        For the foregoing reasons, HCQIA immunity attaches to the Hospital, and summary

judgment is therefore appropriately granted in favor of the Hospital as to Plaintiffs Count V

breach of contract claim. We consequently do not reach the matter of Plaintiffs specific

allegations of the Hospital's breach of the bylaws.


7
  We additionally find that the Hospital's counsel, Daniel W. Rullo, Esq., having been appointed as Presiding
Officer and as legal advisor to..the Hearing Panel supports no inference of unreasonableness on the part of the
Board, particularly because Attorney Rullo did not vote on the recommendations, and the Panel also made
recommendations favoring Plaintiff rather than the Hospital (while still validating the Board's decision-
making). In short, Plaintiff has again failed to show that there is evidence from which a reasonable jury could
find that Plaintiff has rebutted by a preponderance the statutory presumption of the Hospital's compliance with
the Act.


                                                38
    IV. CONCLUSION

        Because Plaintiff has failed to adduce any evidence of prospective or existing

contractual relations that were allegedly interfered with by Defendants, summary judgment

must be granted in favor of Defendants as to Plaintiff's Count IV, tortious interference with

prospective/existing contractual relations claim.

       As discussed supra, the HCQIA provides immunity to Hospitals which perform

professional review action, provided the review is undertaken (1) in the reasonable belief that

the action was in the furtherance of quality health care; (2) after a reasonable effort to obtain

the facts of the matter; (3) after adequate notice and hearing procedures; and (4) in the

reasonable belief that the action is warranted by the facts known. There is a presumption of

compliance with the statute, and it is Plaintiff's burden to adduce evidence which a jury

could reasonably conclude rebuts, by a preponderance of the evidence, the statute's

presumption of compliance. Plaintiff has failed to carry his burden as to each of-the required

elements of the HCQIA. Therefore, we find that the Hospital has complied with the HCQIA

so as to receive immunity for its having revoked Plaintiff's privileges, and we therefore do

not reach the substance of Plaintiffs allegations regarding the Hospital's breach of its

bylaws. Summary judgment is granted in favor of Defendants as to Count V of Plaintiff's

Complaint.




                                          39
