      RECOMMENDED FOR FULL-TEXT PUBLICATION
           Pursuant to Sixth Circuit Rule 206             2   Meyers, et al. v. Columbia/HCA             Nos. 01-6190/6217
   ELECTRONIC CITATION: 2003 FED App. 0298P (6th Cir.)        Healthcare Corp., et al.
               File Name: 03a0298p.06
                                                                  Before: CLAY and GIBBONS, Circuit Judges;
                                                                           CLELAND, District Judge.*
UNITED STATES COURT OF APPEALS
                                                                                _________________
             FOR THE SIXTH CIRCUIT
               _________________                                                     COUNSEL

ROBERT H. MEYERS , M.D.,         X                        ARGUED: Tom Curtis, CURTIS & KIRKPATRICK,
Individually and as a             -                       Pasadena, California, for Appellants. Charles J. Cronan IV,
                                  -                       STITES & HARBISON, Louisville, Kentucky, for Appellees.
Partnership; MARY MEYERS ,                                ON BRIEF: Tom Curtis, CURTIS & KIRKPATRICK,
                                  -   Nos. 01-6190/6217
M.D., Individually and as a       -                       Pasadena, California, for Appellants. Charles J. Cronan IV,
Partnership,                       >                      Margaret R. Appenfelder, STITES & HARBISON,
                                  ,
          Plaintiffs-Appellants/ -                        Louisville, Kentucky, for Appellees.
               Cross-Appellees, -
                                                                                _________________
                                  -
            v.                    -                                                 OPINION
                                  -                                             _________________
                                  -
COLUMBIA /HCA
                                  -                          CLELAND, District Judge. Plaintiffs-appellants Dr.
HEALTHCARE CORPORATION ,          -                       Robert Meyers (“Meyers”) and his wife, Dr. Mary Meyers,
et al.,                           -                       initiated this action against multiple defendants after the
         Defendants-Appellees/ -                          Board of Trustees of Logan Memorial Hospital denied
             Cross-Appellants. -                          Meyers’ reappointment to the hospital’s medical staff. The
                                  -                       district court granted summary judgment in favor of
                                 N                        defendants, finding that they were immune under the Health
        Appeal from the United States District Court      Care Quality Improvement Act (“HCQIA”), 42 U.S.C.
 for the Western District of Kentucky at Bowling Green.   § 11101 et seq. Defendants moved for an award of costs and
 No. 97-00219—Joseph H. McKinley, Jr., District Judge.    attorney’s fees under the HCQIA, and the district court denied
                                                          their motion. Plaintiffs appeal the grant of summary
                 Argued: May 2, 2003                      judgment; defendants cross-appeal the denial of costs and
                                                          fees. We affirm the judgment of the district court on both
         Decided and Filed: August 20, 2003               issues.


                                                              *
                                                               The Honorable Robert H. Cleland, United States District Judge for
                                                          the Eastern District of Michigan, sitting by designation.

                           1
Nos. 01-6190/6217           Meyers, et al. v. Columbia/HCA               3    4   Meyers, et al. v. Columbia/HCA                Nos. 01-6190/6217
                                   Healthcare Corp., et al.                       Healthcare Corp., et al.

                             I. FACTS 1                                       disciplinary and corrective action taken against him while
                                                                              working in Virginia,3 and the quality of his patient care. At
  On March 25, 1991, Meyers applied for medical staff                         this point, pursuant to LMH Bylaws, the Credentials
privileges at Logan Memorial Hospital, Inc. (“LMH”) in                        Committee was to notify Meyers of the general nature of its
Russellville, Kentucky. Shortly thereafter, the Credentials                   concerns and arrange a meeting with Meyers. The
Committee and the Medical Executive Committee (“MEC”)                         Credentials Committee did, on short notice, invite Meyers to
approved Meyers for staff privileges. As a result, in                         a meeting. According to Fred Mudge, a member of the
September 1991, the LMH Board of Trustees (“Board”)                           Board, this invitation did not comply with the Bylaws.
approved Meyers for appointment to the medical staff.
Pursuant to the LMH Bylaws, all initial appointments to the                     On June 3, 1993, the MEC, half of whose members were
medical staff were provisional for one year. At the end of that               also members of the Credentials Committee, voted to accept
year the physician would be reevaluated to qualify for                        the Credentials Committee decision and revoke Meyers’ staff
advancement from associate to active member status.                           privileges. Neither of these committees, however, had the
                                                                              power to grant or deny privileges to Meyers. The MEC was
  In the fall of 1992, the Credentials Committee began to                     to consider the recommendation from the Credentials
evaluate Meyers for his advancement to active staff                           Committee and make a recommendation to the Board, which
privileges. On April 12, 1993, the Credentials Committee,                     had the ultimate authority to grant, deny, or terminate
which Meyers argues was composed largely of his                               Meyers’ privileges.
competitors, voted to deny him staff privileges. In its
decision, the committee cited concerns about Meyers’ history                    On January 24, 1994, the Board informed Meyers that it
of moving from hospital to hospital following disputes with                   was assuming full responsibility for determining his
hospital staff,2 his failure to timely and fully disclose                     reappointment and advancement to active staff because of his

    1
     W e find the district court’s statement of facts to be accurate, and     sabotaged by a group of Lexington physicians. On the other hand, a letter
accordingly adopt it as our own.                                              from CRMC’s adm inistrator suggests that M eyers left because he did not
                                                                              work harmoniously with other members of the hospital staff. The
    2                                                                         administrator also no ted that he did not maintain m edica l records in
      Meyers had p rivileges from 1 981 -82 at T he M emo rial Ho spital in
No rth Conway, New H ampshire, but maintains that he was forced to leave      accord ance with staff rules and regulations.
due to “po litical dynamics” upon establishing his “large, successful             3
practice.” Meyers then wo rked as a trauma surgeon from 198 3-84 in Fort            Meyers was censured and p laced under a corrective action plan
Bragg, North Carolina. From 1984-88 , Meyers practiced in Spruce Pine,        (“CAP”) by the Medical Society of Virginia Review Organization
No rth Carolina until he got “burned out.” In 1988, Meyers moved to           (“MSVR O”) for failure to keep sufficient medica l records. Meyers argues
W ytheville, Virginia, and practiced at W ythe County Community               that he completed the CAP and his license was in no way affected by the
Hospital (“WCCH”). He was suspended from WCCH in July 1989.                   MSVRO. Defendants maintain that he failed to disclose this information
Meyers was later reinstated to the WCC H staff but took a leave of absence    by answering “no” to the following questions on his initial application:
and voluntarily left the hospital. Meyers then obtained provisional           “Has your license to practice medicine in any jurisdiction ever been
privileges in 1990 at Clark Regional Medical Center (“CRMC”) in               limited, suspended or revoked?” and “Have you ever been denied
W inchester, Kentucky. Meyers alleges that he left CRM C because his          mem bersh ip or renewal thereof, or been subject to disc iplinary action in
plan to reestablish the practice of a departed orthopedic surgeon was         any medical organization?”
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                                Healthcare Corp., et al.                Healthcare Corp., et al.

concerns with the manner in which the peer review process           a patient to the surgeon of his choice or to transfer the patient,
was being handled. Three members of the Board, acting as a          condescending remarks toward women, refusal to speak to a
Credentials Committee, conducted an independent review.             member of his surgical team during surgical procedures, and
This committee discussed concerns about Meyers’ behavior            several instances of throwing a scalpel during surgery. The
and inability to get along with others in addition to questions     committee informed Meyers that “[t]his behavior can have an
about his surgical technique. The committee gave Meyers the         adverse effect on the quality of patient care by inhibiting the
opportunity to put forth additional information, but he             ability of hospital personnel to perform optimally, by making
maintained that there was none. The committee questioned            it difficult for the hospital to retain qualified personnel, and
Meyers about several incident reports concerning disruptive         by interfering with the judgment of referring physicians.”
behavior, his history of problems at other hospitals, his failure   The committee further noted that Meyers’ behavior “can also
to timely complete medical records, his hostility towards the       disrupt the efficient operation of the hospital and the smooth
operation room staff, reports of breaking the sterile field, and    operation of the surgical department to the detriment of the
his failure to provide appropriate coverage for patients while      medical staff, the hospital, and the community.” As for his
he was out of town. Meyers acknowledged that he had a               failure to timely complete medical records, the committee
personality problem.                                                stated that “[d]elinquent medical records can put patients at
                                                                    risk by being inaccurate or incomplete if needed to assist in
  At the same time, the Kentucky Cabinet for Human                  later diagnosis and treatment of a patient.” As for quality of
Resources Drug Control Division was investigating Meyers’           care, the committee noted that Meyers had failed to comply
prescription practices pursuant to complaints from                  with LMH’s policy of obtaining post-operative films and that
pharmacists and the Kentucky State Police about the volume          he had demonstrated repeated instances of violating the sterile
of prescriptions he wrote for controlled substances. The            field.
investigation concluded that “Meyers may not have used good
judgment in prescribing controlled substances to all of his           At this point, the Board began proceedings under the
patients.” The Kentucky Board of Medical Licensure                  Medical Staff Bylaws Fair Hearing Plan § 2.3-2 which
recommended that Meyers attend a University of Kentucky             provides that “[a] hearing occasioned by an adverse action of
miniresidency course in prescribing controlled substances.          the Trustees pursuant to § 1.2(b) or (c) shall be conducted by
                                                                    a hearing committee appointed by the Chairman of the
  On March 18, 1994, this three-member committee of the             Trustees and composed of five persons. At least three
Board voted to deny Meyers’ appointment to active staff. The        Medical Staff members shall be included on this committee
reasons cited for the committee’s decision were Meyers’             when feasible.” The Fair Hearing Committee was composed
failure to satisfy requirements that he meet LMH’s standard         of Bill Paxton, a retired court of appeals judge; Fred Greene,
of care, abide by the ethics of the profession, work                an attorney; Mike Robbins, a bank president; Thomas
cooperatively with others, and timely complete medical              Luckett, an industrialist; and Paul Kerr, a licensed dentist.
records. The committee outlined Meyers’ pattern of                  The Board notified Meyers and explained that it was not
disruptive behavior which included, but was not limited to,         feasible to have members of the medical staff on the Fair
temper tantrums, repeated refusal to limit elective cases to        Hearing Committee. This committee met on eleven
time periods routinely reserved for him, attempted                  occasions. Meyers was represented by counsel, given the
interference with the right of an attending physician to refer      opportunity to present witnesses, affidavits, and other
Nos. 01-6190/6217      Meyers, et al. v. Columbia/HCA       7    8   Meyers, et al. v. Columbia/HCA          Nos. 01-6190/6217
                              Healthcare Corp., et al.               Healthcare Corp., et al.

documentary evidence, and given the right to confront,           medical staff who engaged in investigation and credentialing
examine, and cross-examine witnesses presented by LMH.           activities, and members of the Board that took final action
                                                                 after hearing Meyers’ appeal. The complaints alleged breach
   In April 1995, the Fair Hearing Committee issued its report   of contract, violations of federal antitrust laws, violations of
and recommendation that LMH not appoint Meyers to its staff      the Emergency Medical Treatment and Active Labor Act,
because of his failure to meet LMH’s ethical standards and       breach of the covenant of good faith and fair dealing, tortious
his inability to work cooperatively with others. In May, the     interference with economic advantage, and defamation. On
Board adopted and affirmed the Fair Hearing Committee’s          January 27, 2000, the district court entered an order granting
recommendation. The Board informed Meyers of its decision        summary judgment in favor of Defendants on the basis of
and his right to appeal. Meyers appealed the Board’s decision    HCQIA immunity. Plaintiffs’ motion to alter, amend, and
and was again represented by counsel. On August 9, 1995,         vacate the order was denied on May 25, 2000.
the Board informed Meyers of its vote to affirm the decision
denying clinical privileges to Meyers. This was the Board’s        The parties then entered into a stipulation of dismissal,
final decision and Meyers’ privileges were revoked.              which was entered by the district court on March 23, 2001.
                                                                 In the stipulation, the parties agreed that upon a ruling by the
             II. PROCEDURAL HISTORY                              district court on a motion for costs and fees (filed by the
                                                                 defendants on April 6, 2001), the case would be deemed
  On August 22, 1995, Meyers brought suit in Kentucky state      concluded and the ruling on the motion for costs and fees
court (Logan Circuit Court) seeking a restraining order and a    would constitute a final judgment for the purpose of
temporary and permanent injunction requiring LMH to              determining the time in which to file appeals.
reinstate his staff privileges and enjoining LMH from making
a report to the National Practitioner Data Bank. The court         On August 14, 2001, the district court entered an order
granted the restraining order and temporary injunction in part   denying Defendants’ motion for costs and fees. Plaintiffs and
but denied the motion for an injunction which would require      Defendants filed timely notices of appeal.
LMH to reinstate Meyers’ privileges.
                                                                              III. STANDARDS OF REVIEW
  On August 8, 1996, Meyers filed a second suit in Logan
Circuit Court with numerous causes of action against thirty-       A district court must grant a motion for summary judgment
four defendants. Defendants moved for summary judgment           if it finds that the “pleadings, depositions, answers to
based on immunity pursuant to K.R.S. § 311.377(1). The           interrogatories, and admissions on file together with the
court denied that motion.                                        affidavits, if any, show that there is no genuine issue as to any
                                                                 material fact and that the moving party is entitled to judgment
   On November 5, 1997, while the two suits were still           as a matter of law.” Fed. R. Civ. P. 56(c). The moving
pending in state court, Meyers filed suit in the United States   party bears the initial burden of specifying the basis for its
District Court for the Western District of Kentucky.             motion and of identifying that portion of the record which
Following an order for a more definite statement, Meyers         demonstrates the absence of a genuine issue of material fact.
filed two amended complaints against twenty-two defendants,      Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The non-
including hospital administrators, members of LMH’s              moving party must then produce specific evidence that
Nos. 01-6190/6217           Meyers, et al. v. Columbia/HCA        9   10 Meyers, et al. v. Columbia/HCA                   Nos. 01-6190/6217
                                   Healthcare Corp., et al.              Healthcare Corp., et al.

demonstrates there is a genuine issue of fact for trial.              reasonableness requirements, then those persons participating
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48                 in the review “shall not be liable in damages under any law of
(1986). “The mere existence of a scintilla of evidence in             the United States or of any State . . . with respect to the
support of the plaintiff’s position will be insufficient; there       action.” 42 U.S.C. § 11111(a)(1).
must be evidence on which the jury could reasonably find for
the plaintiff.” Id. at 252. The court must view the evidence            Specifically, persons participating in a professional review
in the light most favorable to the non-moving party.                  action are entitled to immunity if the action is taken:
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986). On appeal, this court reviews an order                 (1) in the reasonable belief that the action was in
granting summary judgment de novo. Williams v. Mehra, 186                   furtherance of quality health care;
F.3d 685, 689 (6th Cir. 1999). The appellate court uses the
same legal standard as used by the district court to determine          (2) after a reasonable effort to obtain the facts of the
whether summary judgment is appropriate. Id.                                matter;

   The district court’s denial of Defendants’ request for               (3) after adequate notice and hearing procedures are
attorney’s fees is reviewed for abuse of discretion. Muzquiz                afforded to the physician involved or after such
v. W.A. Foote Memorial Hosp., Inc., 70 F.3d 422, 432 (6th                   other procedures as are fair to the physician under
Cir. 1995).                                                                 the circumstances; and

                         IV. DISCUSSION                                 (4) in the reasonable belief that the action was
                                                                            warranted by the facts known after such reasonable
A. The district court’s grant of summary judgment in                        effort to obtain facts and after meeting the
   favor of Defendants on the basis of HCQIA immunity                       requirement of paragraph (3).
   was proper.
  The HCQIA was passed in 1986 to provide for effective                   could affect adversely the health or welfare of a patient or
peer review and interstate monitoring of incompetent                      patients), and which affects (or may affect) adversely the clinical
                                                                          privileges, or memb ership in a pro fessiona l society, of the
physicians, and to grant qualified immunity from damages for              physician.
those who participate in peer review activities. Austin v.
McNamara, 979 F.2d 728, 733 (9th Cir. 1992); 42 U.S.C.                42 U.S.C. § 1 115 1(9). “Pro fessiona l review activity,” in turn, is defined
§ 11101. If a “professional review action”4 satisfies certain         as “an activity of a health care en tity with respect to an individual
                                                                      physician

   4
                                                                         (A) to determine whether the p hysician may have clinical
       The HC QIA defines “professiona l review action” as:              privileges with respect to, or memb ership in, the entity;
                                                                         (B) to determine the sco pe or conditions of such privileges or
   an action or recomm endation o f a professional review body        membership; or
   which is taken or made in the conduct of professional review          (C) to change or modify such privileges or membership.
   activity, which is based on the competence or professional
   conduct of an individual physician (which conduct affects or       Id. § 1115 1(10).
Nos. 01-6190/6217       Meyers, et al. v. Columbia/HCA 11          12 Meyers, et al. v. Columbia/HCA          Nos. 01-6190/6217
                               Healthcare Corp., et al.               Healthcare Corp., et al.

42 U.S.C. § 11112(a). Once the preceding standards are met,        are outside the scope of § 11112(a)?” Bryan v. James E.
the HCQIA offers immunity to:                                      Holmes Reg’l Med. Ctr., 33 F.3d 1318, 1333 (11th Cir. 1994)
                                                                   (quoting Austin v. McNamara, 979 F.2d 728, 734 (9th Cir.
  (A) the professional review body,                                1992)). The plaintiff has the burden of overcoming the
                                                                   presumption of immunity by showing that the review process
  (B) any person acting as a member or staff to the body,          was not reasonable. Id. Meyers argues that Defendants can
                                                                   meet none of the elements for establishing statutory
  (C) any person under a contract or other formal                  immunity. However, as the district court found, he failed to
      agreement with the body, and                                 raise a genuine issue of material fact as to any element.
                                                                   Therefore, we will affirm the grant of summary judgment.
  (D) any person who participates with or assists the body
      with respect to the action.                                    1.   The Board’s Action Was Taken in the Reasonable
                                                                          Belief that It Was in Furtherance of Quality Health
42 U.S.C. § 11111(a)(1).                                                  Care
   The term “professional review body” includes a “health             The “reasonable belief” standard of the HCQIA is satisfied
care entity and the governing body or any committee of a           if “the reviewers, with the information available to them at the
health care entity which conducts professional review              time of the professional review action, would reasonably have
activity.” 42 U.S.C. § 11151(11). The district court correctly     concluded that their action would restrict incompetent
found that Defendants all fall within the protected categories     behavior or would protect patients.” Bryan, 33 F.3d at 1323
listed in § 11111(a)(1). LMH is a health care entity and a         (citing H.R. REP. NO . 903, at 10, reprinted in 1986
professional review body. The individual doctors are covered       U.S.C.C.A.N. at 6392-93). It is an objective standard, rather
under (B)-(D) as staff members of LMH, persons under a             than a subjective good faith requirement. Id. (citing Austin,
contract with LMH, or persons who participate with or assist       979 F.2d at 734). The Act does not require that the
the body with respect to the professional review action.           professional review result in actual improvement in the
  The HCQIA creates a rebuttable presumption of immunity,          quality of health care, but only that it was undertaken in the
forcing the plaintiff to prove that the defendant’s actions did    reasonable belief that quality health care was being furthered.
not comply with the relevant standards. Id. § 11112(a) (“A         Imperial v. Suburban Hosp. Ass'n, Inc., 37 F.3d 1026, 1030
professional review action shall be presumed to have met the       (4th Cir. 1994).
preceding standards necessary for the protection set out in          Meyers contends that a reasonable jury could find that this
section 11111(a) of this title unless the presumption is           element was not satisfied because: (1) eight members of the
rebutted by a preponderance of the evidence.”). As the             medical staff testified on behalf of Meyers and no member
district court explained, this rebuttable presumption “creates     testified against him; (2) two independent reviewers gave
an unusual summary judgment standard” that can be stated as        favorable reviews of Meyers; (3) two psychologists who
follows: “Might a reasonable jury, viewing the facts in the        examined Meyers recommended that he receive his
best light for [the plaintiff], conclude that he has shown, by a   privileges; and (4) although some nurses testified as to
preponderance of the evidence, that the defendants’ actions
Nos. 01-6190/6217           Meyers, et al. v. Columbia/HCA 13                 14 Meyers, et al. v. Columbia/HCA          Nos. 01-6190/6217
                                   Healthcare Corp., et al.                      Healthcare Corp., et al.

disruptive incidents, each of them testified that they could still            that doctors possess at least a reasonable ‘ability to work with
work with Meyers.                                                             others.’”). Meyers failed to present evidence that the action
                                                                              against him was not taken in the reasonable belief that it
   However, the evidence conclusively demonstrates that both                  furthered quality health care.
the Board’s decision and the Fair Hearing Committee’s
decision were made in the reasonable belief that they were                      2.   The Board’s Action Was Taken After a Reasonable
furthering quality health care, and no reasonable jury could                         Effort to Obtain the Facts of the Matter
find otherwise. Among other evidence, the Fair Hearing
Committee heard testimony about twenty-two incident reports                      Similarly, Meyers failed to raise any genuine issue of fact
involving Meyers which documented loss of temper during                       with respect to the second element of HCQIA immunity. The
surgery, breaking the sterile field, failure to take and                      inquiry is whether the “totality of the process” leading up to
document histories before patients were sedated for surgery,                  the professional review action evinced a reasonable effort to
and other problems.5 This evidence was also considered by                     obtain the facts of the matter. Mathews v. Lancaster Gen.
the Board. The Fair Hearing Committee noted that its                          Hosp., 87 F.3d 624, 637 (3d Cir. 1996). In this case, there
decision was based on Meyers’ temper tantrums, his use of                     was an exhaustive review process. As the district court noted,
coercive tactics, delinquent medical records, his inability to                Meyers was reviewed by both the Credentials Committee and
work with others, and unethical conduct. As the district court                the MEC, as well as by a committee of three Board members
held, these reasons are in furtherance of quality health care,                who conducted an independent investigation. This three-
despite the fact that no patients were actually injured.                      person committee questioned Meyers and gave him an
“Quality health care” is not limited to clinical competence,                  opportunity to provide them with additional information. It
but includes matters of general behavior and ethical conduct.                 then made a recommendation to the Board, which voted to
See Bryan, 33 F.3d at 1334-35 (finding that the termination of                deny Meyers’ appointment to the active staff. Thereafter, the
physician’s privileges was “taken in reasonable belief that the               Fair Hearing Committee met on eleven occasions and heard
action was in furtherance of quality health care” where                       testimony from thirty-five witnesses. Meyers was represented
physician had “exhibited a pattern of unprofessional conduct                  by counsel, given the opportunity to present witnesses,
over a period of many years,” “was disruptive,” and                           affidavits, and other documentary evidence, and given the
“interfered with the important work of other employees”);                     right to confront, examine, and cross-examine witnesses
Everhart v. Jefferson Parish Hosp. Dist. No. 2., 757 F.2d                     presented by LMH. Meyers disputes that a “reasonable
1567, 1573 (5th Cir. 1985) (“[Q]uality patient care demands                   inquiry” occurred, but his argument is limited to conclusory
                                                                              statements attacking individual items of evidence considered
                                                                              by the reviewers. He fails, however, to raise a genuine issue
    5
      Meyers argues that genuine issues of fact exist regarding the
                                                                              to rebut the presumption that the professional review action
verac ity of the underlying allegations against him. Our review, however,     was taken after a “reasonable effort to obtain the facts.”
is not directed at whether each of the complaints were undisputedly true,
but whethe r Defendants acted reaso nably in considering and relying upon
them. In this case , in view of the volume of incidents and the seriousness
of the complaints, there is no genuine issue with respect to the
reasonab leness of Defendants’ belief that their action was taken in the
furtherance o f quality health care.
Nos. 01-6190/6217      Meyers, et al. v. Columbia/HCA 15         16 Meyers, et al. v. Columbia/HCA          Nos. 01-6190/6217
                              Healthcare Corp., et al.              Healthcare Corp., et al.

  3.   Meyers Received Adequate Notice and Hearing                 In any event, the HCQIA sets out specific “safe harbor”
       Procedures                                                procedures, which satisfy the “notice and hearing procedures”
                                                                 requirement of § 11112(a)(3). This requirement is met if the
   The third element of the HCQIA immunity test is whether       hospital has provided, or the physician has voluntarily
adequate notice and hearing procedures were afforded to the      waived, the following:
physician involved. 42 U.S.C. § 11112(a)(3). Meyers raises
the same argument on appeal that he presented to the district      1.   The physician has been given notice stating that a
court. He argues that a reasonable jury could conclude that             professional review action has been proposed to be
LMH did not provide adequate notice and procedures because              taken against the physician, reasons for the proposed
it did not comply with its own bylaws.                                  action, that the physician has the right to request a
                                                                        hearing on the proposed action, any time limit (of
  This argument fails for two reasons. First, Meyers failed to          not less than 30 days) within which to request such
show that LMH violated its bylaws. Second, even assuming                a hearing, and a summary of the rights in the hearing
LMH did violate the bylaws, the notice and procedures                   ....
provided complied with the HCQIA’s statutory “safe harbor,”
as described below.                                                2.   If a hearing is requested on a timely basis . . . , the
                                                                        physician involved must be given notice stating the
  First, the Board was proceeding under the Medical Staff               place, time, and date, of the hearing, which date
Bylaws Fair Hearing Plan § 2.3-2 which provides that “[a]               shall not be less than 30 days after the date of the
hearing occasioned by an adverse action of the Trustees                 notice, and a list of the witnesses (if any) expected
pursuant to § 1.2(b) or (c) shall be conducted by a hearing             to testify at the hearing on behalf of the professional
committee appointed by the Chairman of the Trustees and                 review body.
composed of five persons. At least three Medical Staff
members shall be included on this committee when feasible.”        3.   If a hearing is requested on a timely basis . . . , the
(Emphasis added.) Claudia Dickerson, counsel for LMH,                   hearing shall be held (as determined by the health
explained in letters to Meyers’ counsel dated June 27 and               care entity) before an arbitrator mutually acceptable
July 1, 1994, that it was not feasible to appoint members of            to the physician and the health care entity, before a
the medical staff to the Fair Hearing Committee because some            hearing officer who is appointed by the entity and
were working too many hours to devote adequate time to the              who is not in direct economic competition with the
Committee, some had been involved previously in Meyers’                 physician involved, or before a panel of individuals
peer review or incidents under review, and some were,                   who are appointed by the entity and are not in direct
themselves, possible subjects of future peer review. Meyers             economic competition with the physician involved.
disputes this fact by saying that he located four members of
the medical staff who had not been asked to serve on the           4.   [I]n the hearing the physician involved has the right
Committee. However, this evidence alone cannot show that                to representation by an attorney or other person of
LMH violated its bylaws.                                                the physician’s choice, to have a record made of the
                                                                        proceedings, copies of which may be obtained by
                                                                        the physician upon payment of any reasonable
Nos. 01-6190/6217            Meyers, et al. v. Columbia/HCA 17                  18 Meyers, et al. v. Columbia/HCA         Nos. 01-6190/6217
                                    Healthcare Corp., et al.                       Healthcare Corp., et al.

        charges associated with the preparation thereof, to                     (3d Cir. 1999). While Meyers challenges certain of the
        call, examine, and cross-examine witnesses, to                          underlying facts upon which Defendants relied, he has not
        present evidence determined to be relevant by the                       shown that the facts were “so obviously mistaken or
        hearing officer, regardless of its admissibility in a                   inadequate as to make reliance on them unreasonable.”
        court of law, and to submit a written statement at the                  Mathews, 87 F.3d at 638. Moreover, “a plaintiff’s showing
        close of the hearing; and upon completion of the                        ‘that [the] doctors reached an incorrect conclusion on a
        hearing, the physician involved has the right to                        particular medical issue because of a lack of understanding’
        receive the written recommendation of the arbitrator,                   does not ‘meet the burden of contradicting the existence of a
        officer, or panel, including a statement of the basis                   reasonable belief that they were furthering health care quality
        for the recommendations, and to receive a written                       in participating in the peer review process.’” Brader, 167
        decision of the health care entity, including a                         F.3d at 843 (quoting Imperial, 37 F.3d at 1030).7 In view of
        statement of the basis for the decision.                                the Board’s well-supported findings that Meyers had failed to
                                                                                meet LMH’s ethical standards and that he was unable to work
42 U.S.C. § 11112(b).6 The district court correctly found that                  cooperatively with others, there is no genuine issue as to
no reasonable jury could find that Meyers did not receive                       whether the Board’s action was taken in the reasonable belief
adequate notice or the other requirements of § 11112(b) were                    that it was warranted by the facts.
not met. Meyers himself admitted under oath that he received
each of the HCQIA’s notice and hearing requirements (which                        5.     Meyers’ Legislative History Argument
had been outlined in a letter to him). Accordingly, his
argument that notice was insufficient fails.                                      Meyers makes one additional argument, contending that
                                                                                “the District Court erred in granting immunity under the Act
  4.    The Board’s Action Was Taken in the Reasonable                          where the review was conducted entirely by nonmedical
        Belief That the Action Was Warranted by the Facts                       personnel because such does not constitute ‘peer review.’”
                                                                                Appellants’ Brief at 31.) Although “peer review” is not
   The district court also held that no reasonable jury could                   defined in the Act, it has been described as “the process by
find that the Board did not take the action in the reasonable                   which physicians and hospitals evaluate and discipline staff
belief that it was warranted by the facts. “Our analysis under                  doctors.” Bryan, 33 F.3d at 1321. Bryan explained peer
§ 11112(a)(4) closely tracks our analysis under                                 review as the entire system of handling physician disciplinary
§ 11112(a)(1).” Gabaldoni v. Washington County Hosp.                            actions, from promulgation of bylaws to medical staff
Ass'n, 250 F.3d 255, 263 n.7 (4th Cir. 2001) (quoting                           recommendation to final Board action. Id. at 1324.
Sugarbaker v. SSM Health Care, 190 F.3d 905, 916 (8th Cir.                      Accordingly, the process at issue was “peer review.”
1999)); Brader v. Allegheny Gen. Hosp., 167 F.3d 832, 843
                                                                                  Meyers also claims that “the Act does not give immunity to
                                                                                persons, other than physicians and medical personnel,
    6
                                                                                performing peer reviews of physicians.” Appellants’ Brief at
      W e also note that § 11112 (b) also provides that a failure to meet the
“safe harbor” provisions outline d above does “not, in itself, co nstitute
failure to meet the [adequate notice and hearing] standards of subsection          7
(a)(3) of this section.” 42 U.S.C. § 11 112(b).                                        See also supra note 5.
Nos. 01-6190/6217      Meyers, et al. v. Columbia/HCA 19         20 Meyers, et al. v. Columbia/HCA         Nos. 01-6190/6217
                              Healthcare Corp., et al.              Healthcare Corp., et al.

32.) As Defendants point out, the point is moot because none     immunity was only intended for physicians, it could have
of the non-physician reviewers is a defendant in this action.    done so. In its order granting Defendants’ summary judgment
(Appellees’ Brief at 55.) Even so, Meyers devotes twenty-        motion, the district court stated that it could
five pages of his appellate brief to this argument, including
extensive discussion of legislative history that he argues         find no provision of the HCQIA which requires the
indicates the purpose of the Act is to provide immunity for        professional review process to be conducted by
physicians participating in peer review, and not for others        physicians only. In fact, the language of the HCQIA
involved in the review process. He argues that                     uses the word “person” rather than “physician” to
                                                                   describe those who will be granted immunity. 42 U.S.C.
  the disputed section of the Act states that “(A) the             §§ 11111(a)(1)(B)-(D). Furthermore, under the HCQIA,
  professional review body, (B) any person acting as a             a hearing may be conducted by an arbitrator, hearing
  member or staff to the body, (C) any person under a              officer, or panel of individuals, which contemplates the
  contract or other formal agreement with the body, and            use of non-physicians in the professional review process.
  (D) any person who participates with or assists the body         Id. § 11112(b)(3)(A)(I)-(iii).
  with respect to the action, shall not be liable in damages
  . . . .” 42 U.S.C. § 11111(a)(1)(A)-(D) . . . The Act is       (J.A. at 11 (emphasis added).) The district court’s reasoning
  ambiguous in defining to whom it grants immunity. The          was correct, and we hold that the action in this case was a
  word “person” in the Act is never defined, even though         professional review action giving rise to HCQIA immunity
  the Act defines many other words used.                         for the persons involved.

(Id. at 34-35.) Meyers thus implies that, because the review     B. Cross-Appeal: The District Court Did Not Abuse Its
was not conducted by physicians, the review was not a               Discretion in Declining to Award Attorney’s Fees
“professional review action” and thus the HCQIA does not
apply.                                                             Finally, Defendants contend that the district court erred in
                                                                 denying their motion for costs and attorney’s fees. The
   We disagree and find that the statutory language is not       following provision of the HCQIA provides for fee-shifting:
ambiguous as to who is entitled to immunity or as to what
actions are covered. It is clear that every “person” who           In any suit brought against a defendant, to the extent that
participates in a professional review action is entitled to        a defendant has met the standards set forth under section
immunity. 42 U.S.C. § 11111(a)(1). Meyers argues that the          11112(a) of this title and the defendant substantially
word “person” should be read as “physician,” but there is no       prevails, the court shall, at the conclusion of the action,
support for this assertion. Where the language of the statute      award to a substantially prevailing party defending
is not ambiguous, it is unnecessary to resort to legislative       against any such claim the cost of the suit attributable to
history. See, e.g., Garcia v. United States, 469 U.S. 70, 76       such claim, including a reasonable attorney’s fee, if the
n.3. In any event, Meyers’ legislative history discussion is       claim, or the claimant’s conduct during the litigation of
limited to statements made about the general purpose of the        the claim, was frivolous, unreasonable, without
Act, rather than the specific provision at issue. Accordingly,     foundation, or in bad faith.
his argument fails. Had Congress wished to specify that
Nos. 01-6190/6217        Meyers, et al. v. Columbia/HCA 21          22 Meyers, et al. v. Columbia/HCA           Nos. 01-6190/6217
                                Healthcare Corp., et al.               Healthcare Corp., et al.

42 U.S.C. § 11113. Thus, a defendant should receive an                 Defendants/cross-appellants contend that the district court
award of costs and fees when (1) the defendants are among           erred by considering only the foundation of Meyers’ claims
the persons covered by the HCQIA, (2) the standards set forth       without considering his “abusive” conduct. They seek $2,349
in § 11112(a) were followed, (3) the defendants substantially       in costs and $215,031 in attorney’s fees. Specifically, cross-
prevailed, and (4) the plaintiffs’ claim or conduct during the      appellants argue that Meyers’ filing suit in federal court while
litigation was frivolous, unreasonable, without foundation, or      his two state court suits were pending was a “relentless
in bad faith. Defendants in this case clearly satisfied the first   pursuit” that “was a continuation of harassing behavior
three factors. Whether a party’s claim or conduct is frivolous,     demonstrated at [LMH] and other hospitals.” (Appellees’
unreasonable, or without foundation is a question committed         Brief at 68.) Meyers’ behavior at other hospitals is not a
to the sound discretion of the district court. Johnson v. Nyack     proper consideration in the attorney’s fees question. The fact
Hosp., 964 F.2d 116, 123 (2d Cir. 1992) (citing                     that he filed two actions in state court before filing the action
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421               in federal court is relevant, but not determinative of the
(1978)).                                                            attorney’s fees issue. As Meyers points out, there is “no
                                                                    evidence whatever on the litigation strategy question as to
  Examining the facts, the district court found that the fourth     why the federal action was pursued instead of the state
factor was not satisfied because plaintiffs’ claims and conduct     action.” (Appellants’ Reply Brief at 53.) The district court
were not frivolous, unreasonable, without foundation, or in         was very familiar with plaintiffs’ claims and conduct, having
bad faith. In its order denying Defendants’ motion for costs        presided over the case for nearly four years. It correctly
and fees, the court stated that:                                    stated and applied the standard for granting attorney’s fees.
  it was not unreasonable, frivolous, without foundation, or          Even if we may have decided the attorney’s fees issue
  in bad faith for plaintiffs to oppose the LMH Defendants’         differently if reviewing de novo, Defendants fail to
  position on HCQIA immunity. Plaintiffs had valid                  demonstrate that the district court abused its discretion by
  questions concerning the manner in which the LMH                  denying attorney’s fees in this case.
  Defendants conducted the professional review of
  Dr. Robert Meyers and chose to resolve those issues in                                 V. CONCLUSION
  this Court. As stated above, the fact that Plaintiff did not
  prevail in no way indicates that Plaintiffs’ claims were            For the foregoing reasons, we affirm the district court’s
  unreasonable, frivolous, without foundation, or in bad            grant of summary judgment and its denial of costs and fees.
  faith.
(J.A. at 265.) Furthermore, because the HCQIA immunity
issue decided the case, the district court never determined
whether plaintiffs had sufficient evidence to reach a jury on
their claims related to antitrust, COBRA, EMTALA, breach
of covenant of good faith and fair dealing, or defamation. As
such, the district court could not say that those claims lacked
foundation.
