                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-2439


MARGO J. HEIN-MUNIZ, MD; PARKSIDE MEDICAL CONSULTANTS LLC,
d/b/a Magnolia Medical,

                Plaintiffs - Appellants,

          v.

AIKEN REGIONAL MEDICAL CENTERS; UNIVERSAL HEALTH SERVICES,
INC.; AIKEN OBSTETRICS & GYNECOLOGY ASSOCIATES PA; CARLOS A.
MILANES; K. D. JUSTYN; OLETHA R. MINTO, MD; JAMES F.
BOEHNER, MD; ROBERT D. BOONE, MD; JONATHAN H. ANDERSON, MD;
THOMAS P. PAXTON, MD; UHS OF DELAWARE, INC.,

                Defendants – Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Aiken.    Joseph F. Anderson, Jr., District
Judge. (1:10-cv-00986-JFA)


Submitted:   June 14, 2013                    Decided:   July 5, 2013


Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Thornwell F. Sowell, III, David C. Dick, Alexis K. Lindsay,
SOWELL GRAY STEPP & LAFFITTE, LLC, Columbia, South Carolina, for
Appellants. Travis Dayhuff, NELSON MULLINS RILEY & SCARBOROUGH,
LLP, Columbia, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

               Margo J. Hein-Muniz, M.D. (“Muniz”), 1 a physician whose

clinical privileges at Aiken Regional Medical Center (“ARMC”)

were       terminated   after   a   peer   review   proceeding,   appeals   the

district court’s entry of summary judgment on the civil action

she subsequently brought against the Appellees, in which she

attacked the peer review process and the ultimate decision by

ARMC’s Board of Governors (“Board”) to terminate her privileges.

We affirm.

               We forgo a full recounting of the facts, which are

well known to the parties.            The bulk of the parties’ arguments

on appeal concern the applicability of the Health Care Quality

Improvement Act (“HCQIA”), 42 U.S.C. § 11101-11152 (2006), which

immunizes       those   who     participate    in   a   “professional   review

action” from monetary damages as long as the action is taken

       (1)     in the reasonable belief that the action was in
               the furtherance of quality health care,
       (2)     after a reasonable effort to obtain the facts of
               the matter,
       (3)     after adequate notice and hearing procedures are
               afforded to the physician involved or after such
               other procedures as are fair to the physician
               under the circumstances, and
       (4)     in the reasonable belief that the action was
               warranted   by   the   facts  known   after such


       1
       Muniz’s practice, Parkside Medical Consultants LLC, d/b/a
Magnolia Medical, joins this appeal.    For the sake of brevity,
we refer to Appellants collectively as “Muniz.”



                                           3
             reasonable effort to obtain facts and                            after
             meeting the requirement of paragraph (3).

42 U.S.C. § 11112(a) (2006); Wahi v. Charleston Area Med. Ctr.,

Inc., 562 F.3d 599, 606-07 (4th Cir. 2009).

             “A    professional     review      action     shall    be       presumed      to

have met the preceding standards necessary for [immunity] unless

the presumption is rebutted by a preponderance of the evidence.”

42 U.S.C. § 11112(a).          In view of this presumption, whether the

participants in the peer review action are entitled to summary

judgment        necessitates       application        of    an     “unconventional”

standard:        “whether a reasonable jury, viewing all facts in a

light most favorable to [the plaintiff], could conclude that

[she] had shown, by a preponderance of the evidence, that [the

peer review participants’] actions fell outside the scope of

section 11112(a).”          Gabaldoni v. Wash. Cnty. Hosp. Ass’n, 250

F.3d 255, 260 (4th Cir. 2001).

             Having reviewed the record, we are persuaded that no

reasonable jury could have concluded that the Appellees failed

to meet any of the four requirements of the HCQIA.                             First, no

reasonable      jury   could     have     concluded    that      Muniz       carried      her

burden     of     showing   that    the    Board    was     not    motivated         by    a

reasonable belief that its termination of Muniz’s privileges was

in   the    furtherance     of     quality      health     care    —     a    goal     that

certainly includes ensuring that physicians affiliated with ARMC


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are candid and truthful in their interactions with colleagues

and patients.      See, e.g., 42 U.S.C. § 11151(9) (2006); Singh v.

Blue Cross/Blue Shield of Mass., Inc., 308 F.3d 25, 39 (1st Cir.

2002).        Because    § 11112(a)(1)       requires     only     a    “reasonable

belief” that the action was in furtherance of quality health

care, the test is “an objective one which looks to the totality

of the circumstances.”        Imperial v. Suburban Hosp. Ass’n, Inc.,

37 F.3d 1026, 1030 (4th Cir. 1994); see also Gabaldoni, 250 F.3d

at 261.

              Due to the objective nature of this court’s inquiry,

“to    the    extent    [Muniz’s]    case      relies    on   inferences          of   a

conspiracy to oust [her], . . . such inferences do not create

any genuine issues of fact . . . .                      In the HCQIA immunity

context, the circuits that have considered the issue all agree

that   the     subjective   bias    or   bad    faith    motives       of   the    peer

reviewers is irrelevant.”           Sugarbaker v. SSM Health Care, 190

F.3d 905, 914 (8th Cir. 1999); see Cohlmia v. St. John Med.

Ctr., 693 F.3d 1269, 1279 (10th Cir. 2012).                      And “[t]he fact

that some of the specific concerns [identified by the hearing

panel and the Medical Executive Committee] shifted or changed

over time does not rebut the presumption that the hospital acted

in the reasonable belief that it was furthering quality health

care.”       Lee v. Trinity Lutheran Hosp., 408 F.3d 1064, 1071 (8th

Cir. 2005) (internal quotation marks omitted).                   Notwithstanding

                                         5
Muniz’s       attempt         to    portray       the    Medical    Executive         Committee’s

conduct as a conspiratorial ploy to eject her from ARMC, we can

only   conclude          on    the    record       that    there     was    “enough       evidence

against [Muniz] for the Board to believe that it was furthering

the quality of health care in terminating [her] privileges.”

Gabaldoni, 250 F.3d at 261 (internal quotation marks omitted).

               Given the extensive peer review process conducted in

Muniz’s case, we likewise conclude that no reasonable jury could

find that the Board had failed on the HCQIA’s second prong — to

make a reasonable effort to obtain the pertinent facts.                                      See 42

U.S.C.       § 11112(a)(2);           Moore       v.    Williamsburg       Reg’l      Hosp.,       560

F.3d   166,      175-76            (4th    Cir.     2009);       Singh,    308     F.3d      at    43;

Gabaldoni, 250 F.3d at 261.

               Muniz’s argument as to the third prong of § 11112(a)

must meet the same fate.                         Even assuming that the safe harbor

provisions       found         in    42     U.S.C.       § 11112(b)       (2006)      apply       only

partially      to    the       Board’s       peer       review    action,       but   see,    e.g.,

Moore, 560 F.3d at 176, we nonetheless think it inescapable that

the    Board     terminated               Muniz’s       privileges        “after      such    other

procedures          as        are         fair     to     the      physician          under        the

circumstances.”               42 U.S.C. § 11112(a)(3).                    We do not believe

that     a     reasonable            jury        could     find     that     the       procedural

irregularities           involving          the    hearing       officer    —    unwise       though

some of them were — rendered Muniz’s peer review process unfair

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or objectively unreasonable.              See Wahi, 562 F.3d at 610, 614

(noting standard).         Nor do we countenance Muniz’s assertion that

she was insufficiently on notice that she was required to tell

the truth during her peer review process and that her privileges

could be terminated if she did not do so.                      A reasonable jury

could   only    conclude      that   it     was    “fair”     for   the    Board       to

terminate    Muniz    after    giving     her     extensive    opportunity        in    a

lengthy hearing to explain her misrepresentations.                         42 U.S.C.

§ 11112(a)(3).       See also Moore, 560 F.3d at 175 (“[T]he entire

purpose of an immunity provision is to afford some discretionary

latitude to decisionmakers to make close calls unhaunted by the

specter of civil liability.”).

            Finally, Muniz’s arguments as to the HCQIA’s fourth

prong cannot forestall summary judgment, either, given that a

reasonable jury could conclude only that the Board’s conduct was

taken “in the reasonable belief that the action was warranted by

the facts known” to it.         42 U.S.C. § 11112(a)(4).              Because Muniz

has failed to show that the facts relied upon by the Board were

“so obviously mistaken or inadequate as to make reliance on them

unreasonable,”       she   cannot    defeat       the   presumption        that    the

Board’s     action    complied       with       § 11112(a)(4).            Meyers       v.

Columbia/HCA Healthcare Corp., 341 F.3d 461, 471 (6th Cir. 2003)

(internal quotation marks omitted).               See also Moore, 560 F.3d at

172   (“HCQIA    immunity      allows     hospitals     to     take    prophylactic

                                          7
measures that need not involve proof of improper conduct beyond

a reasonable doubt so long as statutory procedures designed to

protect the reputation and livelihood of the physician have been

observed.”).        Nor does the HCQIA require the Board to consider

less severe disciplinary options as long as the one chosen is

reasonably warranted by the facts.             Id. at 176; Singh, 308 F.3d

at 38.

                Because Muniz “has not met [her] burden of showing

that the requirements in § 11112(a)(1)-(4) were not met” by the

Board, the district court properly determined that the Appellees

are immune from damages under the HCQIA.               Moore, 560 F.3d at

176. 2       To the extent that any of Muniz’s substantive state law

claims survive the operation of the HCQIA, we also conclude that

the district court properly entered summary judgment on each of

them.        See id. at 176-78.

                Accordingly, we affirm the judgment of the district

court.         We dispense with oral argument because the facts and

legal        contentions   are    adequately   presented   in   the   material



         2
       Despite Muniz’s arguments that the district court abused
its discretion in excluding certain expert testimony proferred
by her and in declining to draw an adverse evidence on the basis
of spoliated evidence, we disagree.       See F.C. Wheat Mar.
Corp. v. United States, 663 F.3d 714, 723 (4th Cir. 2011)
(noting standard); Vulcan Materials Co. v. Massiah, 645 F.3d
249, 260 (4th Cir. 2011) (same).



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before   this   court   and   argument   will   not   aid   the   decisional

process.


                                                                    AFFIRMED




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