                                                                 FILED
                                                     United States Court of Appeals
                                                             Tenth Circuit

                                                            April 21, 2014
                                   PUBLISH              Elisabeth A. Shumaker
                                                            Clerk of Court
                 UNITED STATES COURT OF APPEALS

                              TENTH CIRCUIT



GEORGE S. COHLMIA, JR., M.D.,
and CARDIOVASCULAR
SURGICAL SPECIALISTS CORP., an
Oklahoma corporation,

            Plaintiffs - Appellants,

v.                                                 No. 12-5188

ST. JOHN MEDICAL CENTER,
WILLIAM HOWARD ALLRED,
M.D., and WILLIAM BURNETT,
M.D.,

            Defendants - Appellees.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
          FOR THE NORTHERN DISTRICT OF OKLAHOMA
                (D.C. NO. 4:05-CV-00384-GKF-TLW)


Rabindranath Ramana, Calvert Law Firm, Oklahoma City, Oklahoma (Randall K.
Calvert, Calvert Law Firm, Oklahoma City, Oklahoma, and Michael K. Barkett,
The Barkett Law Firm PLLC, Tulsa, Oklahoma, with him on the briefs), for
Appellants.

William H. Spitler, McDonald, McCann & Metcalf, LLP, Tulsa, Oklahoma (James
W. Conner, Jr., Richards & Connor, PLLP, Tulsa, Oklahoma, with him on the
brief), for Appellees.


Before HARTZ, O’BRIEN, and TYMKOVICH, Circuit Judges.
TYMKOVICH, Circuit Judge.



      Dr. George Cohlmia appeals the district court’s decision to award

attorney’s fees to St. John Medical Center as provided by the Health Care Quality

Improvement Act of 1986 (“HCQIA”). Finding that the district court did not

abuse its discretion in awarding attorney’s fees under the Act, we AFFIRM.

                                I. Background

      This case arises from two surgeries performed by Dr. Cohlmia, a

cardiovascular and thoracic surgeon at St. John, a Tulsa hospital. The surgeries

resulted in the death of one of the patients and the permanent disfigurement of the

other. As a result, the hospital conducted a review and concluded that Dr.

Cohlmia had failed to follow proper medical protocols. After St. John suspended

his staff privileges, Dr. Cohlmia appealed the suspension and requested a hearing,

where he was represented by counsel. At the close of the hearing, a retired

federal district court judge upheld the suspension. St. John’s medical executive

committee and its board of directors also reviewed the evidence and agreed with

the decision to suspend Dr. Cohlmia.

      In the wake of his suspension from St. John, other Tulsa medical facilities

inquired into Dr. Cohlmia’s competencies as a surgeon. Because of the

suspension, Dr. Cohlmia was under review or no longer credentialed at three other

hospitals.

                                        -2-
      Dr. Cohlmia sued nineteen defendants on eight causes of action. The

district court dismissed five of those claims early in the proceedings, finding Dr.

Cohlmia had failed to state claims for unlawful attempt to monopolize the market,

illegal boycott, discrimination resulting from his affiliation with Native American

patients, and intentional infliction of emotional distress; and that his defamation

claim was time barred. Cohlmia v. Ardent Health Servs., LLC, 448 F. Supp. 2d

1253 (N.D. Okla. 2006). The court allowed discovery to proceed on the

remaining claims, and the defendants produced over 150,000 documents.

      After discovery was completed, the district court granted summary

judgment for St. John on the three remaining claims: (1) violations of the

Sherman Antitrust Act and the Clayton Act; (2) violations of the Oklahoma

Antitrust Reform Act; and (3) tortious interference with contract and interference

with prospective economic advantage. Cohlmia v. St. John Med. Ctr., 906 F.

Supp. 2d 1188, 1191 (N.D. Okla. 2012). We affirmed the district court’s

decision. Cohlmia v. St. John Med. Ctr., 693 F.3d 1269 (10th Cir. 2012). We

based a large part of our holding on the application of HCQIA and found that it

shielded St. John from all claims for damages. We also affirmed the district

court’s decision to deny Dr. Cohlmia’s request for injunctive relief, finding,

among other things, that he had failed to present evidence that he suffered any

relevant injury.




                                         -3-
      Following our decision, St. John sought attorney’s fees under HCQIA. The

district court awarded $732,668 to St. John on the grounds that, under HCQIA,

Dr. Cohlmia’s claims and conduct during litigation were frivolous and in bad

faith. Dr. Cohlmia appeals that decision, arguing that the district court

misinterpreted the relevant provisions of HCQIA and that his claims were well

founded and properly litigated.

                                   II. Analysis

      A. Health Care Quality Improvement Act

      HCQIA “provides immunity to hospitals or doctors who perform peer

reviews or challenges to professional conduct where patient care is at issue.”

Cohlmia, 693 F.3d at 1276. “HCQIA was adopted out of concern ‘that medical

professionals who were sufficiently fearful of the threat of litigation will simply

not do meaningful peer review, thus leaving patients at the mercy of people who

should have been corrected or removed from their positions.’” Id. (quoting IB

Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law 19 n.1 (3d ed. 2006)).

Specifically, HCQIA protects any person participating in a professional review

action from liability so long as that action satisfies requirements set out in 42

U.S.C. § 11112(a). 42 U.S.C. § 11111.

      If a defendant meets the statutory requirements for a professional review

action, § 11113 allows for an attorney’s fee award where the plaintiff’s claim or



                                         -4-
conduct during the litigation was “frivolous, unreasonable, without foundation, or

in bad faith”:

             In any suit brought against a defendant, to the extent
             that a defendant has met the standards set forth under
             section 11112(a) of this title and the defendant
             substantially prevails, the court shall, at the conclusion
             of the action, award to a substantially prevailing party
             defending against any such claim the cost of the suit
             attributable to such claim, including a reasonable
             attorney’s fee, if the claim, or the claimant's conduct
             during the litigation of the claim, was frivolous,
             unreasonable, without foundation, or in bad faith. For
             the purposes of this section, a defendant shall not be
             considered to have substantially prevailed when the
             plaintiff obtains an award for damages or permanent
             injunctive or declaratory relief.

42 U.S.C. § 11113 (emphasis added).

      Accordingly, a court shall award attorney’s fees to a prevailing defendant if

(1) the professional review action conforms to the standards set forth in

§ 11112(a), (2) the defendant substantially prevails, and (3) the plaintiff’s claim

or conduct during litigation was frivolous, unreasonable, without foundation, or in

bad faith.

      We have previously concluded that St. John satisfied the first and second

requirements. Cohlmia, 693 F.3d at 1277S79 (holding that Dr. Cohlmia failed to

rebut the presumption that St. John met the § 11112(a) standards and affirming

the district court’s grant of summary judgment). Thus, the only substantive




                                         -5-
question presented here is whether Dr. Cohlmia’s claim or conduct was frivolous

or in bad faith.

      The district court concluded “that Cohlmia’s claims were—at best—

unreasonable and without foundation and—at worst—frivolous and asserted in

bad faith.” Order at 26. Specifically, the district court found that

             the defamation and [other tort] claims, which were
             disposed of at the motion to dismiss stage, were
             frivolous when pled. The Section 1981 claim, pursuant
             to which Cohlmia accused St. John of attempting to
             deprive Native Americans of quality health care,
             survived St. John’s motion to dismiss, but after more
             than a year and one half of discovery, was voluntarily
             dismissed by plaintiffs.

Id. (internal quotations omitted). Regarding Dr. Cohlmia’s antitrust claims, the

district court noted that it had “early on expressed skepticism of their viability,”

id., and concluded “that he had failed to present evidence supporting the elements

of his substantive claims for antitrust violations.” Id. at 26–27.

      Dr. Cohlmia argues the district court erred in finding that his claims were

unreasonable. He contends the district court was “not authorize[d] [under the Act

to do] an independent inquiry into a plaintiff’s underlying claims. Accordingly,

the only issue that this Court should consider is whether Dr. Cohlmia’s challenge

to St. John’s assertion of HCQIA immunity was unreasonable or without

foundation.” Aplt. Br. at 31. In other words, he contends we should not consider

the strength or weakness of his entire suit as part of the inquiry into the award of


                                          -6-
attorney’s fees. As a result, Dr. Cohlmia reads the statute to require the court to

award attorney’s fees not if his underlying legal claims were frivolous but only if

his challenge to HCQIA immunity was frivolous.

      We do not reach the same conclusion. HCQIA provides attorney’s fees “in

any suit . . . if the claim, or the claimant’s conduct during the litigation of the

claim, was frivolous, unreasonable, without foundation, or in bad faith.” 42

U.S.C. § 11113 (emphasis added). The statute further allows attorney’s fees for

“substantially prevailing” against “any” claim, not just successfully asserting a

HCQIA immunity. The term “claim” in litigation is common and well understood

to mean a party’s claim for relief. The text of the statute does not suggest that

“claim” could have an alternative meaning in this context, let alone that “claim”

refers only to a contest of HCQIA immunity. In fact, the fee-shifting provision

makes no mention of immunity at all. Although Dr. Cohlmia argues that

mentioning § 11112(a) is Congress’s short hand for allowing attorney’s fees only

for a challenge to HCQIA immunity, § 11112(a) is not about immunity. This

section sets forth the standards the hospital must meet to demonstrate that it was

engaged in a professional review action. In short, the statute allows a prevailing

party to recover fees where HCQIA applies—especially in a case like this one,

which is fundamentally about the consequences of the professional review

process.




                                           -7-
      Other courts agree. For example, the Seventh Circuit found that HCQIA

lays out entirely separate analyses to determine immunity and fee-shifting. Addis

v. Holy Cross Health Sys. Corp., 88 F.3d 482, 486 (7th Cir. 1996) (granting

attorney’s fees under HCQIA where the defendant won summary judgment for

reasons unrelated to HCQIA immunity). The court noted, “[t]he text of § 11113

explicitly states that an award of fees may be appropriate ‘to the extent that a

defendant has met the standards set forth under [sec. 11112(a)].’ It does not link

an award of fees to immunity, as might be the case were § 11113 written along

the lines of, ‘to the extent that a defendant has acquired immunity from damages

liability as provided for in § 11111(a).’” Id. The Ninth Circuit went one step

further, holding that, even if immunity was a close issue, the court may award

attorney’s fees under HCQIA when the plaintiff’s underlying claim was without

foundation. Smith v. Ricks, 31 F.3d 1478, 1488 (9th Cir. 1994).

      These interpretations of the text are entirely consistent with Congress’s

purpose in passing HCQIA to “provide incentive and protection for physicians

engaging in effective professional peer review.” 42 U.S.C. § 11101. Dr.

Cohlmia’s interpretation would allow underlying claims aimed at the peer review

process—after all, that is what this lawsuit is fundamentally about—to be

reframed as antitrust or business tort claims simply to evade § 11113’s fee

shifting provision.




                                         -8-
      Therefore, we agree with the district court that HCQIA fee-shifting is

available if Dr. Cohlmia’s lawsuit or his conduct during litigation was frivolous

and in bad faith.

      B. Attorney’s Fees

      The district court did not abuse its discretion in concluding Dr. Cohlmia’s

claims and conduct during litigation were frivolous and unreasonable. First, as

recounted above, many of the claims initially pleaded failed to even state a

plausible cause of action, let alone merit discovery and additional motions

practice.

      Similarly, the district court found that Dr. Cohlmia’s federal and state

antitrust claims and tort claims were ultimately without foundation. “Although

the antitrust claims [] survived a motion to dismiss, the [district] court early on

expressed skepticism of their viability based on the number of hospitals in the

Tulsa area,” and, as early as November 2006, identified “serious hurdles” that Dr.

Cohlmia must overcome to survive summary judgment. Cohlmia, 906 F. Supp. 2d

at 1205. Despite the district court’s skepticism, Dr. Cohlmia pursued these

claims, “ignor[ing] indicators that the case against St. John lacked substance and

engaged in extensive, costly discovery.” Id. at 1207. Eventually, the court

granted summary judgment on the grounds that, despite ample opportunity, Dr.

Cohlmia had failed to rebut St. John’s assertion of HCQIA immunity or otherwise

present evidence supporting the substantive elements of his claims.

                                          -9-
        We agreed on appeal, finding among other things, that Dr. Cohlmia had not

presented any evidence to suggest he suffered an antitrust injury or damages.

Cohlmia, 693 F.3d at 1281. And the failings of these claims should have been

apparent early in the litigation, as the district court found in awarding attorney’s

fees.

        In sum, after a careful review of the record and pleadings, we agree with

the district court’s conclusion that the suit was “at best—unreasonable and

without foundation and—at worst—frivolous and asserted in bad faith.” Cohlmia,

906 F. Supp. 2d at 1205.

        W e therefore AFFIRM the district court’s order.




                                         -10-
