                        United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 97-1432
                                   ___________

Eileen M. Wayne,                        *
                                        *
              Appellant,                *
                                        *
      v.                                *
                                        * Appeal from the United States
Genesis Medical Center, an Iowa         * District Court for the Southern
Not for Profit Corporation and a        * District of Iowa.
Successor by Merger with St. Luke&s     *
Hospital; St. Luke&s Hospital; Douglas * (PUBLISHED)
Wells; Kristen Wells; James K.          *
McEnerney; William B. Hofmann;          *
Daniel P. Congreve; A.R. Swearingen, *
                                        *
              Appellees.                *
                                   ___________

                          Submitted: January 5, 1998
                              Filed: April 6, 1998
                                  ___________

Before WOLLMAN, LOKEN, and HANSEN, Circuit Judges.
                          ___________

PER CURIAM.

       Eileen Wayne, M.D., appeals the district court&s1 grant of summary judgment to
the defendants in her action asserting violations of the Health Care Quality

      1
        The Honorable Harold D. Vietor, United States District Judge for the Southern
District of Iowa.
Improvement Act of 1986 (HCQIA), 42 U.S.C. §§ 11101-52, and state law breach of
contract, invasion of privacy, and defamation claims. Wayne, an ophthalmologist,
brought this action against Genesis Medical Center and its pre-merger predecessor St.
Luke&s Hospital (collectively, the hospital),2 and six physicians, concerning events
relating to the temporary suspension of her surgical privileges. We affirm.

                                          I.

      Viewed in the light most favorable to Wayne, the stipulated facts and documents
submitted in support of the parties& cross-motions for summary judgment reveal the
following. In October 1992, Wayne was a patient at the hospital, where she underwent
surgery. Subsequently, Wayne lodged a complaint with the hospital regarding the
performance of the surgery. Dissatisfied with the hospital&s responses, Wayne removed
pages of her medical records she found objectionable. Because Wayne was herself a
physician with surgical privileges at the hospital, she had access to hospital medical
records, including her own.

       When Wayne&s action was discovered, the incident was referred to the hospital&s
Surgery Service Committee for investigation; Wayne declined its invitation to attend
its meeting. Because the Surgical Service Committee concluded Wayne&s removal of
the medical records was a medical staff issue, the matter was referred to a meeting of
the hospital&s Medical Executive Committee (MEC), which included the physician
defendants. Wayne was invited to participate, but again declined. The MEC decided
to suspend Wayne&s surgical privileges. After Wayne returned the missing records,
MEC voted to lift Wayne&s suspension.




      2
      On December 15, 1994, St. Luke&s and Mercy hospitals were merged to form
Genesis.

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         In April 1993, Wayne applied for staff privileges at Mercy Hospital. In response
to a request for clinical information regarding Wayne, one of the defendants wrote a
letter to Mercy&s Director of Medical Affairs, in which he stated, inter alia, that Wayne
had had her privileges temporarily suspended “because of an incident of alteration of
her own personal medical record,” but that “[t]his difficulty [had] been resolved.” See
Appellant&s Br. Add. at unnumbered page between pages 25 and 26. In a subsequent
letter, the physician defendant clarified that his reference to “alteration” meant only that
Wayne had removed certain portions of her medical record from the hospital for a
period of time.

       Wayne claimed the defendants& actions in summarily suspending her violated the
HCQIA, because the suspension was not taken “in the reasonable belief that they were
furthering the quality of health care” as required by the Act, and because the HCQIA
specifies that hearing panels may not include members “in direct competition” with the
physician being reviewed, see 42 U.S.C. § 11112(b)(3)(A)(ii), (iii), and two members
of the MEC were ophthalmologists. Wayne also argued that her summary suspension
breached a contract created by the hospital&s bylaws. Asserting that private facts about
her surgery were disseminated and that the defendants discussed her private life at the
MEC meeting, Wayne argued her privacy was invaded. Finally, Wayne argued that the
defendants defamed her by reporting her suspension to other hospitals and using the
term “alteration” in the letter to Mercy.

        Wayne and the defendants cross-moved for summary judgment. The district
court granted the defendants& motion and denied Wayne&s motion. The court reasoned
that the HCQIA did not create a private right of action for physicians, and that the
statute gave the hospital—the only proper defendant—immunity from Wayne&s contract
claim. As to the invasion of privacy claim, the district court concluded that Wayne had
failed to demonstrate widespread publicity. The court concluded that the defamation
claim failed because the letter was substantially true.


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                                            II.

       We review de novo the grant of summary judgment, using the same standards
as the district court and affirming where, viewing the evidence in the light most
favorable to the plaintiff, there is no genuine issue of material fact and judgment is
appropriate as a matter of law. See Davenport v. Riverview Gardens Sch. Dist., 30
F.3d 940, 944 (8th Cir. 1994). We also review de novo the district court&s
interpretation of state law. See Canal Ins. Co. v. Ashmore, 126 F.3d 1083, 1085 (8th
Cir. 1997).

                                           III.

                    A. Private Cause of Action Under the HCQIA

        Although this court has not had the opportunity to examine whether the HCQIA
provides a private cause of action to aggrieved physicians, we can find no bases in the
express language of the HCQIA for concluding that it affords such a private cause of
action. See 42 U.S.C. §§ 11101-52. In determining whether a private remedy is
implicit in the HCQIA, we must consider (1) whether Wayne is a member of the class
for whose especial benefit the HCQIA was passed, (2) whether there was a legislative
intent to create or deny a private remedy, (3) whether an implied remedy is consistent
with the underlying purposes of the legislative scheme, and (4) whether the cause of
action is one basically relegated to the states, so that it would be inappropriate to infer
a federal cause of action. See Labickas v. Arkansas State Univ., 78 F.3d 333, 334 (8th
Cir.) (per curiam) (citing Cort v. Ash, 422 U.S. 66, 78 (1975)), cert. denied, 117 S.
Ct. 395 (1996). The critical inquiry is congressional intent; thus the second and third
factors carry the most weight in this analysis. See id.




                                           -4-
       We conclude that none of these relevant factors weighs in favor of an implied
cause of action. The HCQIA&s grant of immunity to review boards strongly suggests
that the Act was not enacted to benefit the physician undergoing peer review. The
remaining factors weigh against finding an implied cause of action as well, as it was
clearly Congress&s intent in enacting the HCQIA, to “improve the quality of medical
care by encouraging physicians to identify and discipline other physicians who are
incompetent or who engage in unprofessional behavior.” H.R. Rep. No. 99-903, at 2
(1986), reprinted in 1986 U.S.C.C.A.N. 6287, 6384. Nothing in HCQIA&s explicit
language or legislative history otherwise signals an intent to create a cause of action for
aggrieved physicians.

        We thus join the Tenth and Eleventh Circuits in concluding that the HCQIA does
not explicitly or implicitly afford aggrieved physicians a cause of action when a hospital
fails to follow the HCQIA&s prescribed peer review procedures. See Hancock v. Blue
Cross-Blue Shield, Inc., 21 F.3d 373, 374-75 (10th Cir. 1994) (HCQIA does not
explicitly or implicitly create a private cause of action for physicians subjected to peer
review; Congress did not intend to create cause of action for benefit of physicians); see
also Bok v. Mutual Assurance, Inc., 119 F.3d 927, 928-29 (11th Cir. 1997) (per
curiam) (agreeing with Hancock that HCQIA does not create cause of action for
physicians).

                                 B. HCQIA Immunity

      We agree with the district court that the HCQIA immunizes the hospital from
Wayne&s breach-of-contract claim. Under the HCQIA, professional review bodies are
protected from damages suits under federal and state law for review actions taken:

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



                                           -5-
(2)   after a reasonable effort to obtain the facts of the matter,




                                   -6-
      (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. §§ 11111(a)(1) & 11112(a).

       There is a presumption that these requirements have been met unless the
presumption is rebutted by a preponderance of the evidence. See 42 U.S.C.
§ 11112(a). While we have not had an opportunity to apply the HCQIA&s immunity
provision, other circuits interpreting the HCQIA have applied an objective standard to
section 11112(a)&s reasonableness requirement. See, e.g., Mathews v. Lancaster Gen.
Hosp., 87 F.3d 624, 635 (3d Cir. 1996); Bryan v. James E. Holmes Reg&l Med. Ctr.,
33 F.3d 1318, 1335 (11th Cir. 1994), cert. denied, 514 U.S. 1019 (1995); Austin v.
McNamara, 979 F.2d 728, 734 (9th Cir. 1992); see also H.R. Rep. No. 99-903, at 10
(1986), reprinted in 1986 U.S.C.C.A.N. 6287, 6392-93. We agree that section
11112(a) employs an objective standard.

        Applying this standard to the facts of this case, we agree with the district court
that Wayne failed to rebut the presumption of immunity. In response to the defendants&
summary judgment motion, Wayne made conclusory allegations that the defendants
were “clearly unconcerned about quality health care regarding other practitioners” and
that her conduct, rather than the defendants&, was in furtherance of patient interests.
We find these allegations insufficient to rebut the presumption established in section
11112(a). See Austin, 979 F.2d at 734 (question is whether reasonable jury, viewing
facts in plaintiff&s favor, could conclude he had shown by preponderance of evidence
that the defendants& actions fall outside of § 11112(a)).



                                           -7-
       We also conclude that Wayne&s claim that two members of the MEC were
ophthalmologists in direct economic competition with her is insufficient to rebut the
presumption that the peer review process was fair under the circumstances. See
Mathews, 87 F.3d at 634-38 (physician&s allegations that some review members were
competitors was insufficient to rebut presumption that actions met standard for
immunity from suit). Section 11112(b)(3)(A)(ii), (iii), which prohibits a hearing officer
or panel from including physicians in direct competition with the physician involved,
is inapplicable, as the MEC members were not acting as hearing officers. See
Mathews, 87 F.3d at 636 (affirming district court&s conclusion that HCQIA prohibits
direct competitors from being hearing officers, and not from participating in other
phases of peer review process).

                           C. Remaining State Law Claims

       As Wayne did not show the defendant physicians were involved in disseminating
information about her surgery or that the defendants did more than discuss her removal
of records in committee meetings (referring to her by number), we further conclude the
district court properly granted judgment to the defendants on Wayne&s invasion of
privacy claim. See Restatement (Second) of Torts § 652D (1977) (tort requires
publicity of matter highly offensive to reasonable person that is not legitimate concern
to public); Stessman v. American Black Hawk Broad. Co., 416 N.W.2d 685, 686 (Iowa
1987) (observing that Iowa has adopted and applied principles of privacy invasion as
found in Restatement). The defamation claim is likewise without merit, as Wayne did
alter her medical record and was suspended. By removing the pages from her record,
she rendered the record less complete than it was originally, and thereby caused an
alteration to it. See Behr v. Meredith Corp., 414 N.W.2d 339, 342 (Iowa 1987) (Iowa
courts recognize substantial truth as defense to defamation; test is whether “plaintiff
would have been exposed to any more opprobrium had the publication been free of
error”).


                                          -8-
                                        IV.

      We further conclude the district court did not abuse its discretion in denying
Wayne&s delinquent motion to amend her complaint, see Williams v. Little Rock Mun.
Water Works, 21 F.3d 218, 224 (8th Cir. 1994) (standard of review), or her Federal
Rule of Civil Procedure 59(e) motion. See Twin City Constr. Co. v. Turtle Mountain
Band of Chippewa Indians, 911 F.2d 137, 139 (8th Cir. 1990) (Rule 59(e) standard of
review).

                                        V.

      Accordingly, we affirm the judgment of the district court, and we deny all
pending motions as moot.

      A true copy.

            Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                        -9-
