           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           June 23, 2009

                                      No. 08-40262                    Charles R. Fulbruge III
                                                                              Clerk

Dr. Tone JOHNSON and COMPLETE MEDICAL CARE, PC

                                                  Plaintiffs-Appellants
v.

CHRISTUS SPOHN, et al.

                                                  Defendants-Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                   2:06-CV-138


Before GARWOOD, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Plaintiffs-appellants Tone Johnson, M.D. (Johnson) and Complete Medical
Care, P.C. (Complete Medical Care) appeal the district court’s summary
judgment dismissal of their claims alleging that Dr. Johnson’s medical staff
membership and clinical privileges at defendant-appellee Christus Spohn
Hospital (the Hospital) were unlawfully revoked. For the following reasons, we
AFFIRM.
                    I. FACTS AND PROCEEDINGS BELOW

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR . R. 47.5.4.
      Dr. Johnson is an African-American physician and the sole owner of
Complete Medical Care, a general family practice in Corpus Christi, Texas.
Although not a Hospital employee, Dr. Johnson was a member of the medical
staff and enjoyed clinical privileges there, meaning that he could admit and treat
patients at the Hospital, for over twenty years at the time of the events
underlying this suit.   Dr. Johnson’s medical staff membership and clinical
privileges at the Hospital were suspended and eventually revoked following the
death of a patient under his care. The legal issues in this case involve the peer
review process that followed and whether Dr. Johnson’s medical staff
membership and clinical privileges were lawfully revoked.
      On the morning of March 16, 2004, Dr. Reveron, an employee of Complete
Medical Care, admitted patient RM to the Hospital for treatment through Dr.
Johnson.    Dr. Reveron suspected that RM was suffering from varicella
(commonly known as chicken pox) and ordered lab tests to be performed, which
indicated that RM had a low white blood cell count. Although Dr. Reveron
ordered a hematology consult upon admitting RM, either through the fault of Dr.
Johnson or the nursing staff, this initial request was never carried out. Dr.
Johnson claims that he visited RM on March 16, whereas appellees assert that
Dr. Johnson did not examine RM personally until the following evening.
      Regardless, shortly after midnight on March 17, RM suffered a grand mal
seizure. No action was taken until approximately 9:00 a.m., when Dr. Johnson
requested that nurses contact several hematologists and neurologists, none of
whom arrived until that evening. Concerned over her husband’s treatment,
RM’s wife submitted a request that Dr. Johnson be removed from RM’s care,
which the charge nurse passed on to Dr. McCullough (Executive Vice President
of the Medical Staff) and Dr. Cleaves (Chairman of the Department of Family
Practice). When informed of this complaint, Dr. Johnson responded that RM

                                        2
was “2x stupid” and that he was being singled out because of his race. Following
an examination by a hematologist and Dr. Johnson at around 7 p.m. that
evening, RM was immediately transferred to the intensive care unit, where he
was intubated and placed on a ventilator. Soon thereafter, RM’s wife requested
that Dr. Johnson be removed as treating physician and Dr. Johnson either
removed himself or was involuntarily removed. Despite the efforts of several
specialists, RM died on the morning of March 19, 2004.
      At a regularly-scheduled meeting held on March 25, 2004, the Hospital’s
Medical Executive Committee (MEC), which was comprised of approximately
thirty physicians responsible for overseeing the quality of medical care at the
Hospital and recommending disciplinary action to the Christus Spohn Board of
Directors (Board of Directors), heard reports from Dr. McCullough, who also
served on the MEC, and another family practitioner about the events leading up
to RM’s death. Although Dr. Cleaves was unable to attend the meeting, he was
a member of the MEC and recommended that Dr. Johnson’s privileges be
suspended. The MEC voted to suspend Dr. Johnson’s privileges and to appoint
a Departmental Action Committee (DAC) composed of five physicians from the
Department of Family Practice, including Dr. Cleaves, to investigate further.
Dr. Johnson was promptly informed that his privileges were summarily
suspended and that he would be granted an “interview” to present his side of the
story to the DAC. Pursuant to Dr. Johnson’s request, the MEC met again on
April 1, 2004 to hear personally from Dr. Johnson and unanimously voted to
continue his suspension pending the DAC’s investigation.
      At a meeting of the DAC held on April 7, 2004, Dr. Johnson, without the
aid of counsel, was permitted to explain his treatment of RM and to refute the
allegations of substandard care. The DAC also heard from several other doctors
and Hospital staff who were on duty at the time that RM was being treated.

                                       3
With Dr. Cleaves abstaining, the DAC unanimously voted to continue the
suspension and recommended revocation of Dr. Johnson’s medical staff
membership and clinical privileges. On April 22, 2004, the MEC adopted the
DAC’s findings and made the same recommendation to the Board of Directors.
      Thereafter, in accordance with the Medical Staff Bylaws,1 Dr. Johnson
requested review by a Fair Hearing Committee.              At several hearings held
between April and July of 2005, Dr. Johnson was represented by counsel,
presented evidence, and called and cross-examined witnesses. On July 14, 2005,
the Fair Hearing Committee, which was comprised of five of Dr. Johnson’s fellow
physicians, unanimously concluded that Dr. Johnson had failed to meet the
burden imposed by the Medical Staff Bylaws of showing by clear and convincing
evidence that the MEC’s decision lacked “substantial factual basis or that such
basis and the conclusions drawn therefrom [were] arbitrary, unreasonable, and
capricious.” The MEC voted to affirm its recommendation on July 28, 2005, and
Dr. Johnson appealed to the Appellate Review Body.                 After hearing oral
argument from the Hospital and Dr. Johnson’s counsel, the six person Appellate
Review Body unanimously concluded that “(a) this matter has been handled in
substantial compliance with the Hospital Bylaws, (b) the decision of the hearing
committee was based upon the evidence presented to it, and (c) the hearing
committee decision was reasonable in light of the hospital’s duty to its patients.”
Further, the Appellate Review Body specifically found that the revocation was
not based upon race and that Dr. Johnson was afforded a fair hearing and a full
opportunity to present his case. Finally, on November 18, 2005, the Board of
Directors reviewed the Appellate Review Body’s decision and voted to adopt the


      1
       The procedures for conducting a peer review were contained within the Hospital’s
“Credentials Policy and Procedure Manual,” which was incorporated by reference into the
Medical Staff Bylaws.

                                           4
MEC’s recommendation to revoke Dr. Johnson’s medical staff membership and
clinical privileges.2
       On March 24, 2006, Dr. Johnson and Complete Medical Care filed this suit
in the Southern District of Texas against the Hospital and the various individual
administrators and several physician members of the MEC and DAC, asserting
the following claims: violations of federal and Texas antitrust laws; violations of
the Texas Deceptive Trade Practices Act; breach of contract; various state torts,
including    business    disparagement,       defamation,      slander,   libel,   tortious
interference with contract, intentional infliction of emotional distress, fraud, and
misrepresentation; violations of the constitutional rights to free speech, due
process, and equal protection; and race discrimination in violation of 42 U.S.C.
§ 1981. The district court concluded that, as to all but the section 1981 claim,
appellees were immune from civil liability under the Health Care Quality
Improvement Act, 42 U.S.C. §§ 11101 et seq., and its Texas counterpart, the
Texas Health Care Quality Improvement Act, T EX. O CC. C ODE A NN. §§ 160.001
et seq. In regard to the section 1981 claim, the district court determined that
appellants had failed to create a genuine issue of material fact as to whether the
Hospital’s proffered reason for the revocation of Dr. Johnson’s privileges was a
pretext for an underlying discriminatory motive or that race was a motivating
factor in the decision. Therefore, the district court granted summary judgment
for appellees as to all claims. Dr. Johnson and Complete Medical Care timely
appealed.


       2
         We also note that, well after the revocation of Dr. Johnson’s privileges at the
Hospital, he was also disciplined by the Texas State Board of Medical Examiners for his
role in treating RM. The Board of Medical Examiners determined that Dr. Johnson had
failed to observe the required standard of care under Texas law, therefore it imposed a one-
year probated suspension of Dr. Johnson’s license. Dr. Johnson has apparently appealed
those sanctions in state court proceedings that are still pending.

                                             5
                               II. DISCUSSION
A. Standard of Review
      We review a grant of summary judgment de novo, applying the same
standards as the district court. Jenkins v. Methodist Hosps. of Dallas, Inc., 478
F.3d 255, 260 (5th Cir. 2007). In doing so, we view the evidence in the light most
favorable to the non-movant. Patel v. Midland Mem’l Hosp. & Med. Ctr., 298
F.3d 333, 339 (5th Cir. 2002). Summary judgment is proper “if the pleadings,
the discovery and disclosure materials on file, and any affidavits show that there
is no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” F ED. R. C IV. P. 56(c).
B. Summary Judgment Evidence
      Appellants claim that the district court erred in overruling their
evidentiary objections and therefore improperly relied on three categories of
allegedly inadmissable evidence: a timeline of the events leading up to RM’s
death created by Hospital personnel for trial; affidavits from numerous
individuals involved in RM’s treatment and the peer review process stating that
Dr. Johnson’s care for RM was substandard and that the revocation proceedings
were fair; and various notes, letters, and committee minutes created during the
peer review process. Evidence that is inadmissable at trial may not be relied
upon at the summary judgment stage. Duplantis v. Shell Offshore, Inc., 948
F.2d 187, 192 (5th Cir. 1991). Unauthenticated documents may not be used, but
“discovery and disclosure materials on file, and any affidavits” may be relied
upon. Id.; F ED. R. C IV. P. 56(c). We review a district court’s evidentiary rulings
for abuse of discretion. McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558,
562 (5th Cir. 1998).
      As part of their summary judgment evidence, appellees introduced a
timeline purporting to show the sequence of events leading up to RM’s death.

                                         6
Appellants argue that, because the timelime was created after-the-fact and
never relied upon by any of the review committees, it was irrelevant for the
purposes of evaluating what evidence those committees considered. Although
the timeline itself was not considered by the review committees, it nevertheless
assisted the district court in understanding the other evidence considered by
those committees. Moreover, the timeline was accompanied by the affidavits of
seven physicians and hospital staff members who had personal knowledge of the
events described therein and attested to the accuracy of that information. The
district court did not abuse its discretion in admitting the timeline for summary
judgment purposes.
      The second category of challenged evidence includes twenty affidavits
submitted by persons either involved in RM’s treatment or in the peer review
process stating, among other things, that Dr. Johnson’s treatment of RM was
below the required standard of care and that the review process was fair.
Appellants claim that the statements contained in those affidavits were
conclusory and their objections should have been sustained. Affidavits setting
forth “ultimate or conclusory facts and conclusions of law” are insufficient of
themselves to support a grant of summary judgment. Galindo v. Precision Am.
Corp., 754 F.2d 1212, 1216 (5th Cir. 1985). The district court overruled these
objections as moot because the court did not rely on those statements in granting
summary judgment for appellees. Because the district court did not take those
statements into consideration and there is ample additional evidence to support
the district court’s conclusions, we find no error.
      Finally, appellants argue that the various notes, letters, and committee
minutes created during the peer review process contained hearsay and should
not have been admitted. To authenticate those documents, appellees submitted
the affidavit of Dr. Davis, who was Vice President of Medical Affairs at the

                                        7
Hospital and served as the Hospital’s representative throughout the entire peer
review process. Dr. Davis attested that the documents were business records
compiled at the time of the hearings during the regular course of business by
individuals with personal knowledge of the information contained therein. See
F ED. R. E VID. 803(6).   Given Dr. Davis’s position at the Hospital and his
attendance at most, if not all, of the hearings, we conclude that the district court
did not err in admitting those documents as properly authenticated business
records. Moreover, as the district court correctly observed, those documents
were also admissible for the non-hearsay purposes of “showing what evidence
the Medical Executive Committee considered, what actions were taken by
Defendants, whether the procedures taken were fair and whether the committee
members reasonably believed they were acting to further quality healthcare.”
Therefore, we find that the district court did not abuse its discretion in refusing
to exclude the various documents created during the peer review proceedings.
      Ultimately, district courts are afforded broad discretion on evidentiary
matters. Gomez v. St. Jude Med. Daig Div. Inc., 442 F.3d 919, 927 (5th Cir.
2006). The district court did not abuse its discretion here.
B. Immunity under the Health Care Quality Improvement Act
      With the exception of appellants’ section 1981 claim, the district court
dismissed all other claims against appellees pursuant to the Health Care Quality
Improvement Act (HCQIA), 42 U.S.C. §§ 11101 et seq. Congress enacted the
HCQIA to prevent malpractice, to improve the quality of healthcare, and to
ensure that incompetent physicians would be prevented from “mov[ing] from
State to State without disclosure or discovery of the physician’s previous
damaging or incompetent performance.” 42 U.S.C. § 11101(1)–(2). The HCQIA
seeks to promote these goals through professional peer review, which it
accomplishes in part by limiting the civil liability of the physicians,

                                         8
administrators, and health care entities involved in professional review actions.
Id. § 11101(3)–(5).
       To that end, the HCQIA provides that, if certain standards are met,
participants in a peer review process that results in a “professional review
action”3 “shall not be liable in damages under any law of the United States or of
any State (or political subdivision thereof) with respect to the action.” Id. §
11111(a)(1). In order for immunity to attach under the HCQIA, the professional
review action must be taken
       “(1) in the reasonable belief that the action was in the furtherance
       of quality health care,
       (2) after a reasonable effort to obtain the facts of the matter,
       (3) after adequate notice and hearing procedures are afforded to the
       physician involved or after such other procedures as are fair to the
       physician under the circumstances, and
       (4) in the reasonable belief that the action was warranted by the
       facts known after such reasonable effort to obtain facts and after
       meeting the requirement of paragraph (3).”
Id. § 11112(a).      Further, the statute expressly provides that it “shall be
presumed” that these standards have been met, unless the presumption is
rebutted by a preponderance of the evidence. Id. (emphasis added).4 Thus, we
apply an “unusual” standard of review to a grant of summary judgment under


       3
         The HCQIA defines a “professional review action” in part as “an action or
recommendation of a professional review body which is taken or made in the conduct of
professional review activity, which is based on the competence or professional conduct of an
individual physician (which conduct affects or could affect adversely the health or welfare
of a patient or patients), and which affects (or may affect) adversely the clinical privileges,
or membership in a professional society, of the physician.” 42 U.S.C. § 11151(9). In this
case, it is undisputed that the Medical Executive Committee’s recommendation to revoke
Dr. Johnson’s medical staff membership and clinical privileges met this definition.
       4
        Section 11112(a) concludes by stating:
       “A professional review action shall be presumed to have met the preceding
       standards necessary for the protection set out in section 11111(a) of this title
       unless the presumption is rebutted by a preponderance of the evidence.”

                                              9
the HCQIA’s immunity provision, which the Eleventh Circuit has articulated as
follows: “‘whether [the plaintiff] provided sufficient evidence to permit a jury to
find that he ha[d] overcome, by a preponderance of the evidence, the
presumption that [the Hospital] would reasonably have believed’ that it had met
the standards of section 11112(a).” Bryan v. Homes Reg’l Med. Ctr., 33 F.3d
1318, 1333-34 (11th Cir. 1994) (quoting Austin v. McNamara, 979 F.2d 728, 734
(9th Cir. 1992)); see also Van v. Anderson, 199 F. Supp. 2d 550, 571 (N.D. Tex.
2002), aff’d, 66 F. App’x 524 (5th Cir. Apr. 14, 2003) (per curiam).
      The district court held that appellees had met the requirements of section
11112(a) and therefore they were entitled to immunity as to all claims except the
section 1981 claim, which is specifically exempted from immunity under the
statute. See id. § 11111(a)(1). Appellants assert that appellees failed to satisfy
any of the standards laid out in section 11112(a). In doing so, appellants spend
much of their briefs arguing contested factual matters and challenging the
merits of the MEC’s decision. However, we remind appellants that the “[t]he
intent of [the HCQIA] was not to disturb, but to reinforce, the preexisting
reluctance of courts to substitute their judgment on the merits for that of health
care professionals and of the governing bodies of hospitals in an area within
their expertise.”   Bryan, 33 F.3d at 1337 (internal citation and quotations
omitted). Therefore, our role is not to second-guess the merits of the MEC’s
decision, but rather to consider whether the procedures afforded were fair and
whether the members of the MEC made a reasonable investigation and a
reasonable decision based on the facts before them. See 42 U.S.C. § 11112(a).
      i. Furtherance of Quality Health Care
      In determining whether members of the MEC acted “in the reasonable
belief that the action was in the furtherance of quality health care,” we apply an



                                        10
objective “totality of the circumstances” test. See Poliner v. Tex. Health Sys., 537
F.3d 368, 378 (5th Cir. 2008). In doing so, we consider whether “‘the reviewers,
with the information available to them at the time of the professional review
action, would reasonably have concluded that their action would restrict
incompetent behavior or would protect patients.’”         Id. (quoting Meyers v.
Columbia/HCA Healthcare Corp., 341 F.3d 461, 468 (6th Cir. 2003)).
      Appellees clearly met this standard. The peer review action was prompted
by the death of a patient under Dr. Johnson’s care. The MEC members were
presented with evidence suggesting that Dr. Johnson had failed to examine the
patient in a timely manner, that he had failed to order a necessary hematology
consult, that he had been inaccessible to nursing staff attempting to confirm
orders, and that his interactions with RM and his wife had grown so acrimonious
that she requested that he be removed as treating physician.            Given this
evidence, the MEC clearly acted in the reasonable belief that suspension and
revocation of Dr. Johnson’s privileges “would restrict incompetent behavior or
would protect patients.”     See id.   Appellants have failed to overcome the
presumption that the MEC members reasonably believed that revocation of Dr.
Johnson’s privileges would further quality health care at the Hospital.
      ii. Reasonable Effort to Obtain the Facts
      The HCQIA also requires that peer reviewers make “a reasonable effort
to obtain the facts of the matter.” 42 U.S.C. § 11112(a)(2). Appellants contend
that appellees suspended and revoked Dr. Johnson’s privileges and medical staff
membership without conducting a reasonable investigation. We disagree.
      The record reveals that the MEC conducted a reasonable investigation
prior to making its final decision. At the initial meeting held on March 25, 2004,
the MEC heard the testimony of two of Dr. Johnson’s fellow physicians with
first-hand knowledge regarding Dr. Johnson’s care for RM.             Further, the

                                        11
committee members considered the recommendation of Dr. Cleaves, who, as
head of the Department of Family Care, was familiar with the events leading up
to RM’s death.    This information was sufficient to warrant a temporary
suspension and the appointment of a DAC to investigate further. Dr. Johnson
was also granted the requested interview to present his own side of the facts to
the MEC in a meeting held on April 1, 2004.
      At the DAC hearing held on April 7, 2004, in addition to considering RM’s
medical records, committee members heard from Dr. McCullough, Dr. Cleaves,
and the shift supervisor and charge nurse on duty at the time of RM’s treatment.
Dr. Johnson was again allowed to give his version of events. The DAC’s factual
findings were eventually adopted by the MEC when it recommended revocation
of Dr. Johnson’s privileges on April 22, 2004. The Fair Hearing Committee,
which heard further testimony and reviewed the evidence relied upon by the
MEC, eventually concluded that the MEC’s decision was supported by the facts.
Finally, the Appellate Review Body determined that the Fair Hearing
Committee’s decision was reasonably based on the facts presented to it. Thus,
the Hospital’s internal appellate process further confirmed that the MEC’s
efforts to investigate were reasonable. Therefore, we conclude that appellants
have not presented sufficient evidence to overcome the presumption that the
MEC made a reasonable effort to obtain the facts.
      iii. Adequate Notice and Hearing Procedures
      For immunity to attach under the HCQIA, the professional review action
must be taken “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.” Id. § 11112(a)(3). Section 11112(b) lists a number of
procedures that, if followed, constitute a “safe harbor” under which the
requirements of section 11112(a)(3) are deemed to be met. Poliner, 537 F.3d at

                                      12
381–82. Appellants do not claim that Dr. Johnson received insufficient notice,
but rather that the procedures provided by the Hospital were inadequate and
unfair. Thus, the safe harbor provisions relevant to this case are as follows:
      (b) Adequate notice and hearing
      A health care entity is deemed to have met the adequate notice and
      hearing requirement of subsection (a)(3) of this section with respect
      to a physician if the following conditions are met (or are waived
      voluntarily by the physician):
                                        ****
      (3) Conduct of hearing and notice
      If a hearing is requested on a timely basis under paragraph (1)(B)—
                                        ****
      (C) in the hearing the physician involved has the right—
             (i) to representation by an attorney or other person of the
             physician’s choice,
             (ii) to have a record made of the proceedings, copies of which
             may be obtained by the physician upon payment of any
             reasonable charges associated with the preparation thereof,
             (iii) to call, examine, and cross-examine witnesses,
             (iv) to present evidence determined to be relevant by the
             hearing officer, regardless of its admissibility in a court of
             law, and
             (v) to submit a written statement at the close of the hearing.
             ...
                                        ****
      A professional review body’s failure to meet the conditions described
      in this subsection shall not, in itself, constitute failure to meet the
      standards of subsection (a)(3) of this section.
42 U.S.C. § 11112(b).      Thus, observing the procedures listed in section
11112(b)(3) ensures that section 11112(a)(3) is satisfied. However, the statute
makes clear that the safe harbor examples are not mandatory, and any
procedures that are “fair to the physician under the circumstances” will suffice.
See id. § 11112(a)(3).
      Additionally, section 11112(c) provides two exceptions where adequate
notice and hearing procedures are not required: (1) “in the case of a suspension

                                        13
or restriction of clinical privileges, for a period of not longer than 14 days, during
which an investigation is being conducted to determine the need for a
professional review action”; and (2) in the case of “an immediate suspension or
restriction of clinical privileges, subject to subsequent notice and hearing or
other adequate procedures, where the failure to take such an action may result
in an imminent danger to the health of any individual.” Id. §§ 11112(c)(1)(B),
(c)(2).
          Appellants first argue that Dr. Johnson was not provided with adequate
notice and hearing procedures prior to his initial suspension and that appellees’
actions do not fall within the exceptions in section 11112(c). We disagree.
Section 11112(c)(1)(B) authorized the suspension of Dr. Johnson’s privileges for
the thirteen days that the investigation was being conducted between his initial
suspension on March 25, 2004 and the DAC hearing on April 7, 2004.
Nevertheless, appellants maintain that the investigation continued past the
fourteen-day limit in section 11112(c)(1)(B), because the MEC did not make its
final recommendation to revoke Dr. Johnson’s privileges until April 22, 2004.
          Even assuming this is true and that the DAC hearing did not represent
the end of the MEC’s investigation, Dr. Johnson’s continued suspension was
justified under the “imminent danger” exception in section 11112(c)(2). While
discussing this provision in Poliner, we cited with approval to the district court’s
decision in the instant case, which held that “[b]ased on the purportedly
negligent treatment of RM, the Court has little trouble finding Dr. Johnson’s
summary suspension was appropriately based on the reasonable belief he failed
to care for a patient and thus may have represented an imminent danger to the
health of an individual.” 537 F.3d at 383 n.47 (quoting Johnson v. Christus
Spohn, No. C–06–138, 2008 WL 375417, at *12 (S.D. Tex. Feb. 8, 2008))
(alteration omitted). We agree with the district court’s assessment. As we noted

                                         14
in Poliner, “the process provisions of the HCQIA work in tandem: legitimate
concerns lead to temporary restrictions and an investigation; an investigation
reveals that a doctor may in fact be a danger; and in response, the hospital
continues to limit the physician’s privileges.” Id. at 384. This is precisely what
happened here; therefore, whatever procedural failings may have accompanied
Dr. Johnson’s initial suspension were authorized under section 11112(c).
       Even under the imminent danger exception, however, appellees were
required to grant Dr. Johnson due process protections at some point prior to the
final revocation of his medical staff membership and clinical privileges. At the
meetings held by the MEC and the DAC between March 25, 2004 and April 22,
2004, the Hospital essentially formulated an advisory recommendation to the
Board of Directors. Although Dr. Johnson was permitted to speak before the
committees, he was not afforded the right to counsel or any other procedural
protections.    Later, however, when Dr. Johnson appeared before the Fair
Hearing Committee, the Medical Staff Bylaws granted, and Dr. Johnson was
afforded, the right to representation by counsel, to examine and cross-examine
witnesses, to present and rebut evidence, to request a record of the hearing, and
to submit a written statement at the close of the hearing.5
       Appellants complain that, at that point in the proceedings, Dr. Johnson’s
burden of proof was so high as to deny him an adequate hearing under section
11112(a)(3). Before the Fair Hearing Committee, Dr. Johnson had the “burden
of proving, by clear and convincing evidence, that the adverse recommendation
or action lack[ed] any substantial factual basis or that such basis and the
conclusions drawn therefrom [we]re arbitrary, unreasonable, and capricious.”



       5
        Dr. Johnson also exercised all these rights, with the possible exception that he may
have failed to submit a written statement at the close of the hearing.

                                            15
Similarly, the Medical Staff Bylaws limited the Appellate Review Body’s review
of the Fair Hearing Committee’s decision to considering only: “(a) Whether there
has been substantial compliance with the Bylaws; (b) Whether the decision of
the hearing committee was based upon the evidence presented to the hearing
committee; [and] (c) Whether the hearing committee decision was reasonable in
light of the hospital’s duty to patients.”
      Thus, appellants contend that Dr. Johnson was denied procedural
protections at the most critical stage of the proceedings, when the merits were
decided, and that the due process afforded later could not remove the “taint” of
the earlier proceedings. We reject this argument. The HCQIA requires that
procedural protections be afforded at some point in the proceedings, but it does
not specify when. Moreover, neither section 11112(a)(3) nor the safe harbor
provisions in section 11112(b)(3) speak to the burden of proof that should be
applied in peer review actions. Finally, these procedures were those specified
in the Medical Staff Bylaws, and they were only required to be “fair . . . under
the circumstances.” See 42 U.S.C. § 11112(a)(3).
      We note that other courts have found the adequate notice and hearing
requirement in section 11112(a)(3) to be satisfied in cases involving nearly
identical peer review procedures and similar burdens of proof. E.g., Bryan, 33
F.3d at 1336; Bhatt v. Brownsville Gen. Hosp., No. 2:03–CV–1578, 2006 WL
167955, at *25–26 (W.D. Pa. Jan. 20, 2006) (unpublished), aff’d, 236 F. App’x 764
(3d Cir. 2007) (per curiam). For instance, in Bryan the executive committee was
charged with making a recommendation to the board of directors regarding
whether sanctions should be imposed against the physician. 33 F.3d at 1324.
The physician then had the right to request a hearing, at which point he was
“entitled to representation, and ha[d] full rights of cross-examination and
confrontation of witnesses.” Id. at 1325. Significantly, at that hearing the

                                        16
physician had the burden of proving “that the recommendation which prompted
the hearing was unreasonable, not sustained by the evidence, or otherwise
unfounded.” Id. The Eleventh Circuit held that these procedures were adequate
and met the safe harbor provisions under section 11112(b). Id. at 1336.
      Similarly, in Bhatt, the physician was afforded counsel and other
procedural protections when he appeared before the Fair Hearing Committee,
which was charged with reviewing the MEC’s decision to revoke his privileges.
2006 WL 167955, at *2–3. At that hearing, the physician had the burden “to
prove, by a preponderance of the evidence, that the grounds for the [MEC’s]
recommendation lacked any substantial factual basis or that the basis or
conclusions drawn therefrom were arbitrary, unreasonable, or capricious.” Id.
at *3. The district court, whose decision was affirmed by the Third Circuit,
concluded that the hearing was adequate under the safe harbor provisions in
section 11112(b)(3)(C). Id. at *26.
      Likewise, we conclude that the procedures provided by the Hospital
satisfied the safe harbor requirements in section 11112(b)(3)(C). Dr. Johnson
was afforded the right to counsel, the right to have a record made of the
proceedings, the right to call and cross-examine witnesses, the right to present
evidence, and the right to submit a written statement at the end of the hearing.
Indeed, it appears that the Medical Staff Bylaws were intentionally drafted to
mirror the safer harbor provisions in section 11112(b)(3)(C). The fact that these
procedural protections were not provided until Dr. Johnson appeared before the
Fair Hearing Committee does not render them inadequate. And although Dr.
Johnson’s burden of proof was “clear and convincing evidence” and therefore
slightly more onerous than those faced by the physicians in Bryan and Bhatt, we
do not believe that imposing such a burden violated the strictures of section
11112(a)(3). Ultimately, Dr. Johnson’s case was considered by five separate peer

                                       17
review bodies—the MEC, the DAC, the Fair Hearing Committee, the Appellate
Review Body, and the Board of Directors—in a peer review process that lasted
over one and a half years. We find that the procedures provided by the Hospital
were adequate, and that therefore appellants have failed to overcome the
presumption that the Hospital satisfied the requirements of 11112(a)(3).
      iv. Reasonable Belief that the Action Was Warranted by the Facts
      Finally, section 11112(a)(4) requires that, after a reasonable investigation
and adequate hearings, a professional review action be taken in the “reasonable
belief that the action was warranted by the facts.” Essentially, appellants
contest the factual findings of the MEC and assert that it was unreasonable for
the MEC not to accept Dr. Johnson’s version of events.       Further, appellants
claim that revocation of Dr. Johnson’s medical staff membership and clinical
privileges was too harsh under the circumstances and thus unwarranted by the
facts. As stated above, we will not substitute our own judgment for that of Dr.
Johnson’s colleagues, who are much more qualified to make decisions regarding
the adequacy of medical treatment and professional competency. See Bryan, 33
F.3d at 1337. The MEC found that Dr. Johnson had failed to attend to RM
promptly, failed to provide urgently needed medical care, was unavailable to
Hospital staff, and was unresponsive to the needs of RM and his family, all of
which ultimately may have contributed in some fashion to RM’s death.
Certainly, under these facts the MEC members could have reasonably believed
that revocation of Dr. Johnson’s privileges was warranted, and appellants have
failed to overcome the presumption that they acted in that belief.
      v. Appellees Are Immune under the HCQIA
      We conclude that appellants have failed to meet their burden of
demonstrating that a reasonable jury could find, by a preponderance of the
evidence, that appellees did not satisfy the requirements of section 11112(a) of

                                       18
the HCQIA. Because we find that appellees are immune from liability pursuant
to the HCQIA, we need not consider whether they are also immune under the
Texas Health Care Quality Improvement Act, T EX. O CC. C ODE A NN. 160.001 et
seq.
D. Race Discrimination under Section 1981
       The HCQIA specifically excludes civil rights claims from immunity,
including those brought under 42 U.S.C. § 1981 et seq. 42 U.S.C. § 11111(a)(1).
Therefore, we consider separately appellants’ assertion that appellees violated
Dr. Johnson’s contractual rights under 42 U.S.C. § 1981.
       Section 1981 provides that “[a]ll persons within the jurisdiction of the
United States shall have the same right in every State and Territory to make
and enforce contracts . . . as is enjoyed by white citizens.” 42 U.S.C. § 1981(a).
The statute defines the phrase to “make and enforce contracts” as including “the
making, performance, modification, and termination of contracts, and the
enjoyment of all benefits, privileges, terms, and conditions of the contractual
relationship.” 42 U.S.C. § 1981(b).
       In analyzing appellants’ section 1981 claim, the district court correctly
employed the modified McDonnell Douglas burden-shifting framework.6 See
Jenkins, 478 F.3d at 260–61; see also Rachid v. Jack In The Box, Inc., 376 F.3d
305, 312 (5th Cir. 2004). First, appellants were required to establish a prima
facie case of intentional discrimination. See Jenkins, 478 F.3d at 260. To do so,
appellants had to demonstrate that (1) Dr. Johnson was a member of a racial
minority; (2) appellees intended to discriminate on the basis of race; and (3) the
discrimination concerned the making and enforcing of a contract. See id. at
260–61 (citing Bellows v. Amoco Oil Co., 118 F.3d 268, 274 (5th Cir. 1997)).


       6
           McDonnell Douglas Corp. v. Green, 93 S.Ct. 1817 (1973).

                                              19
Next, appellees were required to present a legitimate, non-discriminatory reason
for revoking Dr. Johnson’s privileges. See id. at 261. Finally, appellants had to
show either that the proffered reason was merely a pretext for discrimination or
that Dr. Johnson’s race was a motivating factor in the decision, meaning that
“his race ‘actually played a role in [the Hospital’s decision-making] process and
had a determinative influence on the outcome.’” See id. at 261 (quoting Reeves
v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2105 (2000)) (alteration in
original). At all times, the ultimate burden of proof remained on appellants to
create a genuine issue of material fact as to whether Dr. Johnson’s privileges
were revoked due to intentional race discrimination. See id. at 261.
      We first consider whether appellants met their burden of establishing a
prima facie case. Although Dr. Johnson was not a Hospital employee, appellants
claim that Dr. Johnson’s clinical privileges, bestowed on him by virtue of the
Medical Staff Bylaws,7 constituted a contractual right of which he was
unlawfully deprived. To determine whether a contract existed between Dr.
Johnson and the Hospital, we look to Texas law. In Texas, hospital bylaws can
create contractual rights in favor of doctors, whereas medical staff bylaws
generally do not. Stephan v. Baylor Med. Ctr. at Garland, 20 S.W.3d 880,
887–88 (Tex. App.—Dallas 2000, no pet.). In Stephan, the court found that the
medical staff bylaws at issue did not grant the doctor the contractual right to
receive an application to reapply for hospital privileges. Id. at 888. After
observing that the medical staff and the hospital were distinct entities, the court
considered the nature of the hospital board’s authority in relation to the medical



      7
        As with the procedures observed during the revocation process, Dr. Johnson’s
privileges were granted pursuant to the Hospital’s “Credentials Policy and Procedure
Manual,” which, as noted above, was incorporated by reference into the Medical Staff
Bylaws.

                                           20
staff bylaws:
      “[T]he preamble to [the hospital’s] medical staff bylaws recognizes
      that the staff ‘is subject to the ultimate authority of the board.’ The
      medical staff bylaws do not attempt to define or limit [the hospital’s]
      power to act through its board of trustees. Bylaws that do not
      define or limit the power of a hospital as it acts through its
      governing board do not create contractual obligations for the
      hospital. This is true despite the fact that the board may have
      approved and adopted the staff bylaws.”
Id. (internal citation omitted). Therefore, the court concluded that the medical
staff bylaws created no contractual rights on behalf of the doctor, because the
staff bylaws were not binding on the hospital itself. Id.
      Federal courts applying Texas law have also found that medical staff
bylaws do not generally create contractual rights in favor of doctors. E.g., Van,
199 F. Supp. 2d at 562–63; Monroe v. AMI Hosps. of Tex., 877 F. Supp. 1022,
1029 n.5 (S.D. Tex. 1994). In Van, which was affirmed by this court, the district
court relied on the preamble to the medical staff bylaws in determining that
those bylaws did not create contractual rights on the part of the plaintiff
physician. See 199 F. Supp. 2d at 563. The district court observed that:
      “[T]he Medical Staff Bylaws in place at the Hospital provided in
      their preamble that the medical staff was ‘responsible for the
      quality of medical care in the hospital and for the ethical conduct
      and professional practices of its members and must accept and
      discharge this responsibility, subject to the ultimate authority of the
      hospital Governing Body . . . .”
Id. (emphasis in original). The court also noted that “although the various
hospital committees, including the Executive Committee, were charged with
making recommendations on a member’s reappointment application under the
medical staff’s bylaws, . . . the final authority on this decision rested solely with
the Hospital’s Governing Body.” Id. at 563–64 (emphasis added). Therefore, the



                                         21
district court found that “no contract was created between Plaintiff and the
Defendant Hospital simply by virtue of the fact that Dr. Van had been granted
staff privileges at the hospital,” and thus Dr. Van could not recover under section
1981. Id. at 564–65.
       Similarly, in this case the preamble to the Medical Staff Bylaws limits the
authority of the medical staff, and therefore the Medical Staff Bylaws
themselves, to bind the Board of Directors:
       “There shall be an organized and self governing Medical Staff to
       which is delegated by the Governing Board the overall responsibility
       for the quality of professional services and the ethical and
       professional practice provided by members of the Medical Staff and
       other individuals with clinical privileges. The activities of the
       Medical Staff in fulfilling these responsibilities are subject to final
       review and approval of the Governing Board.”
(emphasis added). Additionally, as was the case in Van, none of the peer review
committees in this case had the power to make a final decision in Dr. Johnson’s
case that would bind the Board of Directors. Rather, the MEC, the Fair Hearing
Committee, and the Appellate Review Body could only make recommendations
to the Board of Directors, which retained the ultimate authority over Dr.
Johnson’s fate. Therefore, because we find that the clinical privileges bestowed
upon Dr. Johnson under the Medical Staff Bylaws did not give him any
contractual rights, we hold that appellants have failed to establish a prima facie
case under section 1981. See Jenkins, 478 F.3d at 260.8
       Moreover, even if we were to assume, as the district court did, that
appellants established a prima facie case, we conclude that appellants’ section



       8
        The case relied on by appellants, Gonzalez v. San Jacinto Methodist Hosp., 880
S.W.2d 436, 438 (Tex. App.–Texarkana 1994; writ denied), involved the bylaws of the
Hospital itself, not Medical Staff bylaws (and in any event no actionable violation was
found).

                                            22
1981 claim would still fail as a matter of law. Appellees have presented a
legitimate, non-discriminatory reason for the revocation of Dr. Johnson’s
privileges: namely, that Dr. Johnson’s provision of substandard medical care
posed a danger to patient safety. We find that appellants have not satisfied
their ultimate burden of presenting sufficient evidence such that a reasonable
jury could find that appellee’s justification for revoking Dr. Johnson’s privileges
was a pretext for discrimination or that race was a motivating factor in the
decision.
      Appellants’ strongest evidence consists of statements made by the
Chairman of the MEC, Dr. Acebo, who allegedly told Dr. Johnson during the
peer review process: “I guess you are being made an example of. Man, I thought
they were going to drop this for sure. It looks like it’s because you’re black.
They wouldn’t be doing this to someone white or Hispanic, you know.” Later,
when appearing as a witness before the Fair Hearing Committee, Dr. Acebo
admitted to previously stating under oath that “if Dr. Johnson was not black,
things may have been a little different.” In a subsequent deposition, Dr. Acebo
attempted to clarify his previous statements, observing that Dr. Johnson was
“probably” treated more severely because of his personality, which, in his mind,
was affected by Dr. Johnson’s race, i.e., “black man with an attitude.”          As
Chairman of the MEC, Dr. Acebo did have some authority over that particular
committee’s decision, but he was only one of the dozens of doctors that reviewed
Dr. Johnson’s case. See id. at 262. Moreover, Dr. Acebo testified that he was one
of only two or three committee members who actually advocated lesser sanctions,
and he was not even present at the July 28, 2005 meeting at which the MEC
accepted    the   Fair   Hearing   Committee’s    report   and   made    its   final
recommendation to the Board of Directors to revoke Dr. Johnson’s privileges.
Thus any discriminatory animus that he himself may have harbored did not

                                        23
contribute to the revocation of Dr. Johnson’s privileges. In the end, Dr. Acebo’s
remarks amount to nothing more than mere speculation as to the motives of the
other committee members, which Dr. Acebo admitted was founded solely on his
own personal opinion. Dr. Acebo testified that his suspicions were based on his
knowledge of two other unspecified peer review proceeding in which unnamed
white doctors were not punished as severely as Dr. Johnson. Other than the
very briefest generic descriptions, there is no evidence regarding the
circumstances of those wholly unidentified peer review actions (or the conduct
charged against the doctor or doctors or the severity of any results thereof). As
we observed in Jenkins, mere “opinions, with no supporting evidence,” that a
suspension or revocation of privileges was based on race are insufficient to
support a claim of discrimination. See id. at 262 (emphasis in original).
      Appellants also allege that Dr. McCullough complained a few months
before the peer review that Dr. Johnson “took his place in medical school,” thus
allegedly demonstrating his resentment toward African-American doctors.
Further, appellants claim that when Dr. Johnson arrived at the Hospital over
twenty years ago, Dr. Cleaves indicated that he did not wish to practice in the
same building as Dr. Johnson because of his race. As these alleged statements
are removed in time and substance from the peer review process, we find them
to be mere “stray remarks,” which are insufficient to support a section 1981
claim. See id. at 261–62. Appellants’ assertion that the MEC was “all-white” is
not correct, as the record reflects that the committee included several Hispanic
and Indian doctors. Finally, other than Dr. Acebo’s unsubstantiated suspicions,
appellants provide no proof for their assertion that Dr. Johnson was treated
more severely than a white doctor would have been under similar circumstances.
      Therefore, we hold that appellants have failed to present sufficient
evidence for a reasonable jury to conclude that appellees violated section 1981

                                       24
when they revoked Dr. Johnson’s clinical privileges.       Appellants have not
established a contractual relationship that would support a claim under section
1981, nor have they created a fact issue as to whether appellees’ proffered reason
for revoking Dr. Johnson’s privileges was pretextual or that race was a
motivating factor in the decision.
                             III. CONCLUSION
      We find that the district court did not abuse its discretion in overruling
appellants’ evidentiary objections. We also conclude that the district court did
not err in granting appellees immunity under the HCQIA. Finally, we hold that
the district court correctly dismissed appellants’ section 1981 claim because: (1)
appellants failed to establish that the Hospital breached his contractual rights;
and in any event (2) appellants failed to demonstrate that the proffered reason
for the revocation of Dr. Johnson’s privileges was pretextual or that race was a
motivating factor in the decision. Therefore, the district court’s judgment is
                                  AFFIRMED.




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