                                                                             RECOMMENDED FOR FULL-TEXT PUBLICATION
12    Samuel v. Herrick Memorial                     No. 99-1462                  Pursuant to Sixth Circuit Rule 206
      Hosp., et al.                                                       ELECTRONIC CITATION: 2000 FED App. 0026P (6th Cir.)
                                                                                      File Name: 00a0026p.06

Obstetricians and Gynecologists concluded that plaintiff had
exercised "poor judgment" and had failed to "demonstrate               UNITED STATES COURT OF APPEALS
foresight to anticipate complications of care." Id. The
American College of Obstetricians and Gynecologists report                          FOR THE SIXTH CIRCUIT
also stated that plaintiff's "failure to recognize critical signs of                  _________________
fetal and maternal compromise prevents him from
recognizing the need to seek assistance of from providing
                                                                                                    ;
optimal obstetric care based on recognized, published
                                                                                                     
standards of care." Id. Finally, the American College of               DONALD R. SAMUEL, M.D.,
                                                                                                     
Obstetricians and Gynecologists concluded that "[a]ttempts to                    Plaintiff-Appellee,
                                                                                                     
rehabilitate [plaintiff] within Herrick Memorial Hospital can
                                                                                                     
not succeed due to lack of patient volume, acuity of care, and                                               No. 99-1462
                                                                                 v.
                                                                                                     
personal-social relationships previously established at this                                          >
                                                                                                     
hospital." Id. Based on this report, we believe that any
                                                                       HERRICK MEMORIAL
                                                                       HOSPITAL, LENAWEE HEALTH 
damage that may be done to plaintiff's professional reputation

                                                                                                     
is substantially outweighed by the harm that defendants and

                                                                                                     
the public would suffer if plaintiff continues to practice             ALLIANCE, DR. LAURIE
                                                                                                     
medicine without additional training. Because the balance of           BARKWAY, DAVID HICKMAN,
                                                                                                     
harms weighs against granting the preliminary injunction, and          DR. MICHAEL SAMMARCO,
                                                                                                     
because plaintiff is not likely to prevail on the merits, we
                                                                       MICHAEL MIHORA, JOHN
                                                                                                     
conclude that the district court abused its discretion when it
                                                                       EASTON and LINDA YIELDING, 
granted the preliminary injunction in this case.                       ROBERTSTAD, HAROLD

                                                                                                     
                                                                             Defendants-Appellants. 
  We have interlocutory appellate jurisdiction in this case

                                                                                                     
only to review the propriety of the injunction under 28 U.S.C.

                                                                                                    1
§ 1292(a)(1), not to review on an interlocutory basis the
denial of defendants' motion for summary judgment.
Accordingly, the preliminary injunction is dissolved.
                                                                             Appeal from the United States District Court
                                                                          for the Eastern District of Michigan at Ann Arbor.
                                                                           No. 99-60140—George C. Steeh, District Judge.
                                                                                       Argued: June 9, 1999
                                                                                Decided and Filed: January 18, 2000
                                                                       Before: MERRITT, DAUGHTREY, and MOORE, Circuit
                                                                                          Judges.

                                                                                                  1
2     Samuel v. Herrick Memorial                    No. 99-1462      No. 99-1462                Samuel v. Herrick Memorial         11
      Hosp., et al.                                                                                            Hosp., et al.

                     _________________                               interfere with plaintiff's business relationships. As explained
                                                                     above, we do not believe plaintiff has shown a likelihood of
                          COUNSEL                                    success on the merits of the underlying claims that form the
                                                                     bases for his conspiracy claim. Nor has plaintiff stated any
ARGUED: David A. French, MILLER, CANFIELD,                           specifics as to how defendants conspired against him.
PADDOCK & STONE, Ann Arbor, Michigan, for                            Basically, plaintiff has alleged that defendants conspired to
Appellants. Robert A. Maxwell, DENISON & MAXWELL,                    drive him out of business either because of his race and/or
Bloomfield Hills, Michigan, for Appellee.                            because they did not want any competition in the obstetrics
                                                                     and gynecology area. Plaintiff offers little in the way of
                     _________________                               support for these conspiracy theories except the hiring of Dr.
                                                                     Sammarco and the results of the peer review process. As
                         OPINION                                     explained above, thus far plaintiff has not put forth any facts
                     _________________                               demonstrating an improper motive behind these actions.
  MERRITT, Circuit Judge. This appeal from a grant of a              Therefore, we do not find that plaintiff has demonstrated a
preliminary injunction concerns the suspension of staff              likelihood of success on the merits as to a conspiracy
privileges to plaintiff, Donald Samuel, M.D., an                     underlying any of these claims.
obstetrician/gynecologist, by defendant Herrick Memorial                We also believe that the district court erred when it
Hospital. After Herrick Memorial suspended plaintiff's staff         determined that the balance of harms in this case weighs in
privileges, he moved the district court for a preliminary            favor of granting the preliminary injunction. The district
injunction enjoining the suspension. The district court              court granted the preliminary injunction because it determined
granted the injunction, thereby reinstating plaintiff's privileges   that the sanctions imposed by the hospital would cause
with certain conditions. Defendants appealed the grant of the        irreparable harm to the plaintiff's professional reputation in
injunction to this Court. This Court stayed enforcement of the       the community. See Order Granting Preliminary Injunction
injunction by order dated May 14, 1999. The case comes to            at 7 ("[P]laintiff is facing not only financial ruin and
our panel from the motions docket and we heard oral                  insolvency if injunctive relief is not granted, but the
argument on the motion to stay. For the reasons that follow,         destruction of his professional reputation and with it, the loss
we now vacate the injunction and remand the case to the              of any chance to rebuild his now burgeoning medical
district court for further proceedings.                              practice.") In reaching its decision, however, the district court
                                I.                                   failed to give sufficient weight to the harm that defendants
                                                                     and the public would suffer if the plaintiff is allowed to
  Plaintiff is an African-American physician with a private          continue to practice obstetrics and gynecology without first
practice in Tecumseh, a small community between Toledo,              receiving further medical training.
Ann Arbor and Detroit. He attended medical school in
Toledo and completed his residency in obstetrics and                   Indeed, the results of the on-site review that was performed
gynecology at a hospital in Michigan. He set up a practice in        by the American College of Obstetricians and Gynecologists
Texas and, in 1990, he was recruited by Herrick Memorial to          show that plaintiff's poor judgment and clinical deficiencies
be its staff OB/GYN because Tecumseh did not have one in             have endangered his patients on several occasions. Report of
the community. In 1992, plaintiff set up a private practice,         Site Visit at 30. In its report, the American College of
10    Samuel v. Herrick Memorial                    No. 99-1462      No. 99-1462                Samuel v. Herrick Memorial        3
      Hosp., et al.                                                                                            Hosp., et al.

Gen. Hosp., 229 Conn. 592, 643 A.2d 233 (1994); Lewisburg            with financial backing by Herrick Memorial, and he was
Comm. Hosp., Inc. v. Alfredson, 805 S.W.2d 756 (Tenn.                extended staff privileges at Herrick Memorial. In 1996 he
1991); Wong v. Garden Park Comm. Hosp., Inc., 565 So. 2d             became Chief of Staff at the hospital.
550 (Miss. 1990); Bouquett v. St. Elizabeth Corp., 43 Ohio St.
3d 50, 558 N.E.2d 113 (1989); Bock v. John C. Lincoln                  In 1996, defendant Lenawee Health Alliance purchased
Hosp., 145 Ariz. 432, 702 P.2d 253 (Ariz. Ct. of App. 1985);         Herrick Memorial and nearby Emma Bixby Memorial
Spencer v. Community Hosp. of Evanston, 87 Ill. App. 3d              Hospital, the only two hospitals in Tecumseh, and runs them
214, 408 N.E.2d 981 (1980); Margolin v. Morton F. Plant              under a joint operating agreement. Plaintiff was a vigorous
Hosp. Ass'n, Inc., 348 So. 2d 57 (Fla. App. 1977). Michigan          opponent of this joint venture and claims that the hospital has
follows an even more stringent rule that does not allow any          been trying to drive him out ever since. After the purchase,
review, even to ensure that the methods put forth by hospital        Lenawee Health Alliance started looking for another
for peer review are followed. See, e.g., Sarin v. Samaritan          OB/GYN, despite plaintiff's protests that the area could not
Health Center, 176 Mich. App. 790, 795, 440 N.W.2d 80                support another OB/GYN. Over that protest, defendant Dr.
(1989); accord Zipper v. Health Midwest, 978 S.W.2d 398              Sammarco, who is white, was hired as the staff OB/GYN at
(Mo. App. 1998); Winston v. American Med. Int'l, Inc., 930           Herrick Memorial.
S.W.2d 945 (Tex. Civ. App. – Houston 1997). The third
option, followed by a small but apparently growing number               In October 1998 one of plaintiff's patients died from
of states, allows judicial review to ensure that the hospital's      hemorrhaging after a caesarean delivery. The death was
decision was not arbitrary and capricious or otherwise               plaintiff's first maternal death in 10 years of practice. After
unreasonable. The laws in these jurisdictions require that the       the death, the hospital required him to consult with another
hospital's decision to suspend or otherwise limit a physician's      physician, in this case Dr. Sammarco, the only other OB/GYN
access to the hospital facilities be supported by "some"             at Herrick Memorial, upon admitting a patient to the hospital.
evidence or allow some further analysis beyond review only           This monitoring arrangement went on for four months, during
of adherence by the hospital to its procedures. See, e.g.,           the pendency of the hearing process required by the hospital's
Cooper v. Delaware Valley Med. Center, 539 Pa. 620, 654              bylaws, and continued until this Court stayed enforcement of
A.2d 547 (1995); Zoneraich v. Overlook Hosp., 212 N.J.               the injunction and reimposed the suspension of privileges in
Super. 83, 514 A.2d 53 (1986).                                       May at the request of defendants.

   In light of Michigan's flat rule against judicial intervention,     The hospital's Ad Hoc Hearing Committee held a hearing
we conclude that the district court erred in finding a               on January 27, 1999, at which two physicians testified as to
likelihood of success on the merits on the tortious interference     plaintiff's competence and stated that plaintiff was not to
with contractual relations and business relationships claim.         blame for the death. On February 3, 1999, the Ad Hoc
                                                                     Hearing Committee recommended to the Medical Executive
  4. Conspiracy Claim                                                Committee that the monitoring be discontinued pending the
                                                                     results of an external review to be conducted by the American
  Plaintiff's conspiracy claim includes allegations of a             College of Obstetricians and Gynecologists. The Medical
conspiracy to unreasonably restrain plaintiff from practicing        Executive Committee rejected the Ad Hoc Committee's
medicine in the community, a conspiracy to discriminate              recommendation and the monitoring requirement continued.
against plaintiff based on his race and a conspiracy to
4     Samuel v. Herrick Memorial                   No. 99-1462      No. 99-1462                   Samuel v. Herrick Memorial            9
      Hosp., et al.                                                                                              Hosp., et al.

   In February 1999, three reviewers from the American              breached its contract with him and he is not asking for a
College of Obstetricians and Gynecologists conducted an on-         specific review of whether the hospital followed its own
site review of Herrick Memorial's obstetrics unit, at the           procedures in suspending him, he is actually seeking judicial
hospital's request. One reviewer was the Director of Medical        intervention into the decision of a private hospital to suspend
Education in the Department of Obstetrics and Gynecology at         his staff privileges. A decision of this nature is not proper
Children's Hospital in Buffalo, New York, and another, an           matter for judicial intervention and consideration of his claim
African-American, was from the Department of Obstetrics             would make a "mockery of the rule that prohibits judicial
and Gynecology at the University of Chicago. The third              review of such decisions by private hospitals." Id. at 794, 440
reviewer was a medical writer and computer specialist. The          N.W.2d at 83.
review included interviews with staff members and a review
of some of plaintiff's case charts, although the reviewers knew        The judicial reviewability of medical staffing decisions has
plaintiff only as "Physician A."                                    been debated and continues to be debated in most states.
                                                                    Most physicians are not employed by a hospital but instead
  At the exit interview with hospital staff, the independent        are independent contractors who are granted privileges to use
reviewers issued a preliminary report recommending that             a hospital, including its staff and equipment. A hospital's
plaintiff undergo a six-month, intensive training program at        procedures for granting or renewing privileges and the
the residency level before he be allowed to continue the            standards by which a doctor must abide are generally
practice of medicine. On March 4, 1999, based on the                embodied in the hospital's bylaws.
reviewers' preliminary report given at the exit interview, the
Executive Committee recommended suspension of plaintiff's             Most jurisdictions distinguish between private and public
privileges pending his completion of a six-month remedial           hospitals, with the staffing decisions of public hospitals
course in obstetrics/gynecology in a program approved by the        subject to the due process and equal protections guarantees
Executive Committee. Plaintiff had thirty days to apply for         under the United States Constitution and the staffing
such a program. Failure to comply with these conditions             decisions of private hospitals generally      unreviewable or
would result in termination of his privileges.                      subject to very limited judicial review.1 In addition, the level
                                                                    of judicial review may differ between decisions to grant
   The next day, March 5, 1999, plaintiff filed a complaint         privileges as an initial matter and decisions to limit or
alleging discrimination on the basis of race, antitrust             suspend existing privileges.
violations and state law tort and contract claims. Plaintiff
also moved for a preliminary injunction to lift the suspension,       The rule generally forbidding judicial review of staffing
which was granted in part by the district court with                decisions by private hospitals appears to be the majority view
instructions to defendants to institute monitoring procedures       in the United States, although some jurisdictions allow
for plaintiff instead of suspending his privileges. Specifically,   limited judicial review to ensure only that the hospital
the complaint alleges (1) violations of 42 U.S.C. § 1981 based      followed its own procedures. See, e.g., Owens v. New Britain
on defendants' interference with Samuel's business contracts
and expectancies based on race (Count I), (2) that defendants
acted in concert to revoke his staff privileges and eliminate           1
                                                                         Florida has eliminated the distinction between private and public
OB/GYN competition within Lenawee County in violation of            hospitals for purposes of judicial reviewability by legislating that a
the Sherman Antitrust Act, 15 U.S.C. §§ 1 et seq. (Count II),       hospital must promulgate bylaws and those bylaws create a binding
                                                                    contract between the physician and the hospital.
8        Samuel v. Herrick Memorial                No. 99-1462      No. 99-1462                Samuel v. Herrick Memorial        5
         Hosp., et al.                                                                                        Hosp., et al.

alleged, plaintiff is complaining of nothing more than a            (3) a state law claim of tortious interference with business
decrease or potential decrease in patients from competition.        expectancy and relationships (Count III), (4) existence of a
Based on the facts in the record at this time, we do not see a      civil conspiracy among defendants to (a) unreasonably
likelihood on the merits of the antitrust claim.                    restrain plaintiff from practicing medicine, (b) interfere with
                                                                    contracts with patients and (c) discriminate based on race
    3.    Tortious Interference with Contractual Relations and      (Count IV), (5) defamation regarding statements about
          Business Relationships Claim                              plaintiff's ability to practice medicine and his mental health
                                                                    (Count V), (6) a violation of the due process rights of
  As to the tortious interference claim, the claim on which the     reasonable notice and a hearing prior to the deprivation of his
district court found the most chance of success by plaintiff,       property interest to practice medicine (Count VI).
Michigan law is very clear that claims arising from the peer
review process are not judicially reviewable. The district            After a hearing held March 8, the district court granted the
court therefore did not have jurisdiction to review this claim.     preliminary injunction in part and ordered continuation of the
Under Michigan law, a private hospital is empowered to              monitoring process. On March 15, defendants filed a motion
appoint and remove its members at will without judicial             for dismissal of the complaint or summary judgment. At a
intervention and has the right to exclude any doctor from           hearing held March 16, the district court ordered continuation
practicing therein. Muzquiz v. W.A. Foote Mem. Hosp., Inc.,         of the monitoring process.
70 F.3d 422, 430 (6th Cir. 1995); Long v. Chelsea Community
Hosp., 219 Mich. App. 578, 586, 557 N.W.2d 157, 161                    On April 14, 1999, the court dismissed the defamation
(1996); Sarin v. Samaritan Health Center, 176 Mich. App.            (Count V) and due process (Count VI) claims pursuant to
790, 795, 440 N.W.2d 80 (1989); Veldhus v. Central Mich.            Rule 12(b)(6), but refused to dismiss the other claims or to
Community Hosp., 142 Mich. App. 243, 246, 369 N.W.2d                grant defendants' motion for summary judgment, noting that
478, 479-80 (1985); Hoffman v. Garden City Hosp.-                   it believed the state law claim for tortious interference to be
Osteopathic, 115 Mich. App. 773, 778-79, 321 N.W.2d 810             the strongest claim. In a separate order issued the same day,
(1982).                                                             the district court granted the preliminary injunction in part,
                                                                    because (1) it found that plaintiff had some possibility of
  The only exception to this nonreviewability rule arises           succeeding on the merits with regards to his tortious
when defendants have been accused of violating state or             interference with business expectations claim and (2) it found
federal law, such as state or federal discrimination laws. The      that plaintiff would be irreparably injured in his medical
district court was free to review the federal antitrust and         career by the suspension. The district court ordered that the
discrimination claims, as we did above, but it was without          monitoring remain in place to ensure the safety of the
jurisdiction to review plaintiff's claim of tortious interference   community. On April 26, 1999, the district court denied a
with contractual relations and business relationships, as are       stay of the injunction pending appeal. At a May 3 status
we, because it would necessarily involve a review of the            conference, the district court approved the monitoring plan
decision to suspend plaintiff and the methods or reasons            proposed by plaintiff, which called for plaintiff to confer
behind that action, which is clearly prohibited under Michigan      telephonically with several doctors in other hospitals on each
law as improper interference with the hospital's decisions and      admission. Defendants did not offer any counterproposal
the peer review process. See Sarin at 791-92, 440 N.W.2d            regarding monitoring and maintained that any monitoring was
at 80. Although plaintiff does not allege that the hospital
6    Samuel v. Herrick Memorial                  No. 99-1462      No. 99-1462                 Samuel v. Herrick Memorial          7
     Hosp., et al.                                                                                           Hosp., et al.

unsatisfactory and unethical in light of the magnitude of           1. Racial Discrimination
plaintiff's alleged deficiencies.
                                                                     Plaintiff alleges that Herrick Memorial discriminated
  Defendants appealed the denial of the stay of the injunction    against him based on race in violation of 42 U.S.C. § 1981.
pending appeal and filed an interlocutory appeal of the denial    However, no specific examples relating to discrimination
of their summary judgment motion. This Court stayed               against him are recited in his complaint. Plaintiff recites facts
enforcement of the injunction, thereby reimposing the             concerning possible racial discrimination by Herrick
suspension of plaintiff's staff privileges at the hospital, but   Memorial against a third party who applied for a job at the
also set the appeal on an expedited basis.                        hospital, but offers neither actual nor circumstantial evidence
                                                                  regarding conduct against him. The only factual allegations
                              II.                                 cited to support his claim are that the hospital hired Dr.
                                                                  Sammarco, who is white, and his bare allegation that he was
   When ruling on a motion for preliminary injunction, the        reviewed and suspended after a patient death while
district court considers four factors: (1) whether the movant     nonminority doctors were treated differently under similar
is likely to prevail on the merits; (2) whether the movant        circumstances. Based on these factual allegations, we do not
would suffer irreparable injury if the court does not grant the   see a likelihood of success on the merits.
injunction; (3) whether a preliminary injunction would cause
substantial harm to others and (4) whether a preliminary            2. Antitrust Claim
injunction would be in the public interest. Glover v. Johnson,
855 F.2d 277, 282 (6th Cir. 1988). We review the district            As to the antitrust claim, plaintiff contends that the hospital
court's determination under an abuse of discretion of standard.   wishes to drive him out of business because it would derive
Id.                                                               greater revenue from patients seeing Dr. Sammarco, who is a
                                                                  staff physician, instead of plaintiff, who in private practice
            Likelihood of Success on the Merits                   and has hospital privileges. In other words, the hospital first
                                                                  hired Dr. Sammarco and then used the peer review process
  We agree with the district court that there is minimal          improperly to restrain access to the market for obstetric and
evidence in the record to demonstrate a likelihood of success     gynecological services. First, at least the individual
on the merits of plaintiff's claims. Order Granting Preliminary   defendants may be immune from antitrust liability for a
Injunction at 13 n.2 ("Plaintiff has not argued, at least not     properly conducted peer review process. The Health Care
with any serious conviction, that any of his other claims         Quality improvement Act of 1986, 42 U.S.C. §§ 11101 et
[other than the tortious interference claim] are likely to        seq., provides antitrust immunity for participants in properly
succeed on the merits."). The facts alleged in the complaint      conducted peer review processes. Id. § 11111; see also Lie v.
are barely adequate to survive a motion to dismiss on the         St. Joseph Hosp. of Mt. Clemens, Mich., 964 F.2d 567, 570
federal discrimination and antitrust claims, although after       (6th Cir. 1992). Second, plaintiff has related virtually no facts
more discovery it may be possible for plaintiff to adduce         that demonstrate that there was any anticompetitive motive
further evidence on these claims.                                 behind the hiring of Dr. Sammarco or plaintiff's suspension.
                                                                  The allegations are based only on speculation of the
                                                                  motivation behind these actions. Absent the assumptions
                                                                  about the motives behind the conduct that plaintiff has
