                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-21-1999

Pamintuan v. Nanticoke Mem. Hosp.
Precedential or Non-Precedential:

Docket 98-5502




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Filed September 21, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-5502

ELVIRA PAMINTUAN, M. D.,
       Appellant

v.

NANTICOKE MEMORIAL HOSPITAL

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

(D.C. No. 96-cv-00233)
District Judge: The Honorable Sue L. Robinson

ARGUED June 17, 1999

BEFORE: NYGAARD, STAPLETON, and COWEN,
Circuit Judges.

(Filed September 21, 1999)

       Leonard L. Williams, Esq. (Argued)
       1214 King Street
       Wilmington, DE 19801

       Brian J. Bartley, Esq.
       Sullivan & Bartley
       1010 Concord Avenue
       Suite 200
       Wilmington, DE 19802

        Attorneys for Appellant
       Richard G. Elliott, Jr., Esq. (Argued)
       Claudia A. DelGross, Esq.
       Richards, Layton & Finger
       One Rodney Square
       P.O. Box 551
       Wilmington, DE 19899

        Attorneys for Appellee

OPINION OF THE COURT

NYGAARD, Circuit Judge.

Appellant, Dr. Elvira Pamintuan, an OB/GYN who had
her privileges suspended at Nanticoke Memorial Hospital,
sued the hospital claiming that its action was racially
motivated. Nanticoke Memorial defended its actions, citing
concerns about the quality of care Dr. Pamintuan had been
providing. On summary judgment, the District Court ruled
that Dr. Pamintuan did not have standing to sue Nanticoke
Memorial under Title VII because she was not an employee
of the hospital. In addition, the District Court held that Dr.
Pamintuan had failed to present sufficient evidence to
support her claims of disparate treatment under 42 U.S.C.
S 1981. Finally, the District Court found that the Health
Care Quality Improvement Act, 42 U.S.C. S 11101 et seq.,
precluded a state law damage award. We will affirm.

I.

The facts, stated in the light most favorable to Dr.
Pamintuan, are taken in large part from the District Court's
opinion. See Pamintuan v. Nanticoke Mem'l Hosp. , C.A. 96-
233, 1998 WL 743680 (D. Del. Oct. 15, 1998). Dr.
Pamintuan, who is of Filipino descent, has been licensed to
practice medicine in Delaware since 1971, specializing in
obstetrics and gynecology. Until her suspension, she had
staff privileges at Nanticoke Memorial. These privileges had
been renewed periodically, most recently in 1992 for a two-
year period, and included admitting, treating, and
consulting patients at Nanticoke Memorial.

                                 2
A. Obstetrics and Gynecology Departmental
Meetings

Beginning in December 1990, the minutes of the
 840<!>Department of Obstetrics and Gynecology1   monthly

meetings began to reflect concern with Dr. Pamintuan's
performance. Most of these notations indicate that she had
failed to comply with hospital policy concerning response
time and progress notes. For example, the minutes from the
December 1990 meeting reveal that the nursing supervisor
filed a report documenting Dr. Pamintuan's failure, in
violation of hospital bylaws, to timely respond to a call
regarding a cesarean section.2 Minutes from the December
1991 and January 1992 meetings record Dr. Pamintuan's
failure to promptly enter a patient's progress notes; as a
result the OB/GYN Department sent Dr. Pamintuan a
memo regarding the need for timely charting.

Similar concerns regarding delinquent charting were
raised at the September 1992 meeting:

       This was a patient from the clinic admitted on 7/21/92
       with acute pyelonephritis during pregnancy and stayed
       in the hospital for five days. Problem: no H & P, no
       progress notes and all orders were verbal except for
       admission and discharge. This chart was incomplete
       for two months. Only two entries were made. This
       chart was needed for a second admission and no
       documentation was present to assist with the second
       admission.

App. at B-305. As before, Dr. Pamintuan was sent a memo
about the incident. At the next meeting, the OB/GYN
Department voted to send the chart to Nanticoke
Memorial's Quality Assurance Committee for further
investigation because "the Department of OB feels that
patient care was compromised in this case because of the
_________________________________________________________________

1. From 1990 through 1993, the OB/GYN Department consisted of five
physicians: Drs. Cabrera (Hispanic), Rupp (Caucasian), DeJesus-Jiloca
(Filipino), Tierno (Caucasian), and Pamintuan (Filipino).

2. The minutes indicate that further action on this matter was precluded
because "the OB nurses did not follow the Hospital Communication
Policy of beeping first or calling another physician."

                                3
lack of information in the chart, which is a violation of the
medical staff practice in this institution."3 App. at B-307.

Concerns about Dr. Pamintuan's timeliness, chart
deficiencies, and other complaints concerning her conduct
continued to be documented at OB/GYN Department
meetings throughout 1993. In January 1993, the Director
of Maternal/Fetal Nursing complained about Dr.
Pamintuan's response time (three hours) after being
beeped; Dr. Pamintuan contended that her beeper was
defective. In April 1993, the minutes reflect two complaints
regarding Dr. Pamintuan. The first, from the Vice President
of Nursing and Administration, accuses Dr. Pamintuan of
improperly arranging to admit a patient while she was on
the "sanctions list" for failure to keep her charts up-to-date.
The second, from the Director of OR Nursing, accused Dr.
Pamintuan of unnecessarily keeping the on-call team in the
operating room from 1:45 am to 5:15 am. Dr. Pamintuan
denied both incidents. These incidents were discussed at
the May, June, July, and August 1993 meetings. Written
statements were requested of all parties, including Dr.
Pamintuan. In addition, the July 1993 meeting minutes
reflect an additional complaint, from the chairperson of the
OB/GYN Department, regarding Dr. Pamintuan's failure to
answer her beeper, which required that he cover the
delivery. Again, written statements of all those involved
were requested. All of these incidents were forwarded to the
Quality Assurance Committee for review. In addition, Dr.
Rupp, the OB/GYN Department Chairperson, sent a letter
to the Quality Assurance Committee reviewing the
discussion concerning Dr. Pamintuan at the August
OB/GYN Department meeting.

In March 1994, at the request of the Quality Assurance
Committee, the OB/GYN Department held a special
meeting to discuss Dr. Pamintuan's handling of two cases.
_________________________________________________________________

3. With respect to this incident, Dr. Pamintuan admits that she left for
vacation without completing the chart and, thus, the chart was
incomplete at the time of the second admission. Dr. Pamintuan avers,
however, that upon her return the chart remained incomplete because
Dr. Rupp, OB/GYN Department Chairperson, had thefile sequestered in
his office.

                               4
The standard of care in the first case was deemed
appropriate. The second case involved a threatened
miscarriage. Since only two physicians other than those
involved in the case were present at the meeting, discussion
was tabled until the April meeting.

At the April meeting,

       [i]t was unanimous department consensus that[Dr.
       Pamintuan] should have performed a timely dilation
       and evacuation for the patient in question. Her failure
       to recognize and treat the apparent spontaneous
       miscarriage was not consistent with appropriate
       gynecological care. Action: A memo will be sent to the
       Quality Assurance Committee of the Board with this
       finding.

App. at B-377. The report concluded:

       Administration has concern with the potential
       demonstration of inappropriate judgment [by] the
       above physician. Over the last 18 months there have
       been continued questions about her judgment and
       administration is concerned with safety of patients
       under this physician's care.

App. at B-377.

Besides Dr. Pamintuan's cases, other physicians' cases
having complications were presented for review at the
OB/GYN Department meetings. Like Dr. Pamintuan's, these
cases were selected for review by the nurses. According to
Dr. Pamintuan, during the time period January 1, 1992
through September 1994, there were "at least" twenty-four
cases with complications involving OB/GYN physicians
other than herself presented for "Morbidity Quality
Assurance Review." Of these twenty-four cases, Dr.
Pamintuan contended that "fifteen . . . involved morbidities
that were more severe and reflected a lesser quality of care
than were reflected in the two cases for which[she] was
subjected to Professional Review Action by the Hospital
Administration and its subordinate boards and
committees." According to Dr. Pamintuan, "nearly all of the
morbidities resulted after care provided by the three . . .
Caucasian physicians in the OB/GYN Department." The

                               5
minutes of the OB/GYN Department meetings, however, do
not indicate that either the OB/GYN Department or Dr.
Pamintuan (who was the reviewing physician in seven of
the twenty-four cases) found quality of care issues in these
cases. The minutes state, for the most part, that the level
of care administered was "appropriate," there was "no
problem," or the "standard of care was met." According to
the minutes, Dr. Pamintuan was the only OB/GYN
physician whose conduct warranted review by the Quality
Assurance Committee.4

B. The Review Process

       1. Quality Assurance Committee

In August 1993, upon the request of the OB/GYN
Department, the Quality Assurance Committee5 reviewed
Dr. Pamintuan's cases for the previous three years. The
Quality Assurance Committee identified several areas of
concern regarding Dr. Pamintuan's patient care.
Subsequently, the Committee met with Dr. Pamintuan to
discuss its findings and proposed recommendations.
Although Dr. Pamintuan initially agreed with aspects of the
Quality Assurance Committee's proposed recommendations,
she ultimately rejected them, claiming that confidentiality
had been breached. As a result, the matter was referred to
the Executive Committee for review and action.

       2. The Executive Committee6
_________________________________________________________________

4. The minutes indicate that Dr. Pamintuan was not the only physician
cited for lack of availability. The April and May 1992 minutes record an
incident involving a physician who failed to respond to a delivery
because he was in surgery. In response, the OB/GYN Department
determined that " `it is the responsibility of the Obstetrician to be
present
for delivery or arrange for another Obstetrician to be present.' "

5. The Quality Assurance Committee is responsible for, inter alia, "the
duty to assure the safety of patients and that patient care and hospital
services, including the medical care provided by physicians at the
Hospital, are the most appropriate for the health of the patient and of
highest quality possible."

6. The Executive Committee is comprised of the officers of the medical
staff, the chairpersons of each department, the ICU director, and the
Emergency Department director.

                               6
In May 1994, the Executive Committee, finding the
Quality Assurance Committee's recommendations
unworkable, voted unanimously to suspend Dr.
Pamintuan's clinical privileges pending further
investigation. Dr. Pamintuan was notified by letter of the
Executive Committee's decision. In response to a "Request
for Investigation Concerning Possible Professional Review
Action" submitted by the Quality Assurance Committee, the
Executive Committee met with Dr. Pamintuan to discuss
her suspension and the need for a formal investigation. At
the meeting, the Executive Committee opted to reject Dr.
Pamintuan's proposal for an informal intervention and
voted unanimously to continue her suspension.

Rather than request a hearing, Dr. Pamintuan and
Nanticoke Memorial agreed that she would take a six-
month leave of absence beginning July 1, 1994, during
which her suspension would be terminated and the formal
investigation held in abeyance.

       3. Investigating Committee

On September 26, 1994, Dr. Pamintuan's attorney
requested that the Executive Committee proceed with a
formal investigation. An Investigating Committee was
formed to review Dr. Pamintuan's patient care. The
members of the Investigating Committee were selected to
ensure broad representation with respect to gender,
ethnicity, and medical practice, where possible requesting
female and Filipino physician participation.

The Investigating Committee was charged with reviewing
six of Dr. Pamintuan's cases, with each member assigned
to one case (one physician was assigned to two cases). Of
the six cases reviewed, the Investigating Committee found
"quality issues" in four and was unable to reach a
conclusion regarding a fifth because of insufficient
documentation of the complications that had occurred. On
November 30, 1994, the Investigating Committee reported
its findings to the Executive Committee.

Following a review of the findings of the Investigating
Committee and the Quality Assurance Committee, the
Executive Committee recommended that Dr. Pamintuan's

                                7
privileges be restored, conditioned on her completion of
either an OB/GYN residency retraining program or a review
course and recertification. Dr. Pamintuan was notified of
the Executive Committee's decision by letter, which also
documented the Committee's findings with respect to the
deficiencies in Dr. Pamintuan's performance.

       4. Judicial Review Committee

In January 1995, Dr. Pamintuan invoked her rights and
requested a hearing. A Judicial Review Committee 7 and
hearing officer were appointed. Hearings took place over
several days in April and May 1995, during which Dr.
Pamintuan was present and represented by counsel.

The Judicial Review Committee approved the Executive
Committee's recommendation that Dr. Pamintuan
undertake one of two retraining options as a condition of
reinstatement. The Judicial Review Committee based its
decision on a detailed and extensive review of the record,
which led it to conclude that Dr. Pamintuan had"exhibited
a pattern of inadequate record-keeping; unacceptable
delays in providing necessary treatments; exposing patients
to unacceptable risks; poor medical judgment[;] and[ ]
disregard of hospital policies." App. at B-48.

       5. Appeal Board

Dr. Pamintuan appealed the Judicial Review Committee
decision before the Appeal Board of Nanticoke Memorial.
Following briefing and oral argument, the Appeal Board
affirmed the decision of the Judicial Review Committee. In
January 1996, Nanticoke Memorial's governing body
adopted the opinion of the Appeal Board. In addition, an
_________________________________________________________________

7. Like the Investigating Committee, the six members of the Judicial
Review Committee were selected by the president of the medical staff and
an attempt was made to include medical staff who had not previously
evaluated Dr. Pamintuan and who were not in direct economic
competition with her. Because of this latter provision, however, none of
the physicians who evaluated her performance specialized in obstetrics
and gynecology.

                               8
adverse action report was filed with the Delaware Medical
Practice Board.8

C. Dr. Pamintuan's Contentions and Evidentiary
       Support

       1. Disparate Treatment

Dr. Pamintuan contends that Nanticoke Memorial used
the alleged deficiencies in her performance as a pretext for
its actual discriminatory motive. She alleges that the
actions taken against her were more severe than the
sanctions imposed on non-Filipino physicians with similar
records.

Regarding charting, Dr. Pamintuan contends that record-
keeping problems at Nanticoke Memorial were long-
standing and involved many physicians, not just Dr.
Pamintuan. As early as March 1990, Executive Committee
meeting notes indicate that physicians were delinquent in
their record keeping, with two (neither of them Dr.
Pamintuan) on the delinquent chart list for several months.

According to the minutes, these latter physicians'
charting delinquencies were severe enough to jeopardize
their reappointment. According to Dr. Pamintuan, during
the last two weeks of her summary suspension, thirty
percent of the hospital's medical staff was delinquent in
completing charts. Dr. Pamintuan contends that since her
termination the Nanticoke Memorial has indicated a
"willingness to positively respond to other physicians"
concerning delinquent charting. Specifically, Dr. Pamintuan
points to two letters indicating that the charting
delinquency problem has continued to be a hospital-wide
concern since her suspension.

Like the charting problem, Dr. Pamintuan contends that
response time has been a long-standing concern at
Nanticoke Memorial. She points to the February 12, 1990
minutes of the OB/GYN Department meeting, which record
that "[t]he OB nursing staff has concerns in regard to
_________________________________________________________________

8. For a more detailed discussion of the review action, see Pamintuan v.
Nanticoke Mem'l Hosp., Inc., C.A. No. 96-233, 1997 WL 129338 (D. Del.
Feb. 24, 1997).

                                9
having difficulty reaching some OB physicians by beeper
and/or phone." In response, the OB/GYN Department
adopted a policy whereby detailed records were to be kept
regarding each physician's response time and availability,
such that the Department would be able to review cases
and correct any problems.

Dr. Pamintuan argues with respect to clinical evaluations
that Nanticoke Memorial failed to perform a valid
comparative review of her performance with that of her
colleagues. According to Dr. Pamintuan, the only way
Nanticoke Memorial can establish that she was "in fact"
subject to the same standard of quality review as other
physicians would be by a comparative review analysis. In
support of her argument, Dr. Pamintuan proffers the
testimony of two physicians, Dr. Andrew Stiber9 and Dr.
Thomas Dyer,10 both of whom testified at the Judicial
Review Committee hearings. According to Dr. Dyer,

       in fairness I think that you have to review twenty-five
       consecutive cases of any practitioner, and also
       compare him to other people doing the same work. . ..
       If the quality assurance is questioned, the statistical
       consort that you could make a valid judgment on is
       twenty-five consecutive cases. And then of course the
       standard of care is what you're comparing it to, so you
       want to find out what another practitioner or other
       practitioners do with the same kind of case. I think
       that anecdotes are a problem.

App. at B-423 to B-424. Dr. Stiber, who provided a written
review of Dr. Pamintuan's performance in the four cases
before the Judicial Review Committee, found Dr.
Pamintuan's care in all instances to have been appropriate.
He concluded by stating:

       Finally, after reviewing all four cases, I am very
_________________________________________________________________

9. Dr. Stiber is a clinical Associate Professor at New York University
Medical Center and former Chairperson, Section 1, District II, of the
American College of Obstetrics and Gynecology.

10. At the time of Dr. Pamintuan's review action, Dr. Dyer had been a
practicing OG/GYN for nearly 30 years and Chairperson of the OB/GYN
Committee at Milford Memorial Hospital for more than 25 years.

                                10
       concerned that the issues here are not quality
       assurance, but the issues of denying a doctor the right
       to practice medicine.

App. at B-433.

To further substantiate her claim of disparate treatment,
Dr. Pamintuan points to the following excerpt from the
Executive Committee's January 19, 1994, meeting minutes:

       QUALITY ASSURANCE: A representative from the
       Quality Assurance Committee reported a problem with
       a provider that caused a focus review on the provider's
       care. Some timely action must be taken to move
       forward and protect patients. A memo is being drafted
       to outline steps to prevent professional review action
       and allow this person to practice in an unencumbered
       fashion. This type of intervention has worked in the
       past. By the next Executive Committee meeting,
       hopefully a volunteer program will be developed. The
       concerns are: (1) 30% complication rate, (2) 30-40%
       mortality rate post-op, and (3) 20-25% curative
       infection rate. The trend will be sent to the Department
       of Surgery. A process group with all involved will be
       scheduled with a consensus standard developed. The
       suggestion of a "Pre-Op Conference" could be helpful.

App. at B-436. Dr. Pamintuan alleges that the
aforementioned physician is Caucasian. Nanticoke
Memorial, however, contends that all but the last three
sentences of the excerpt refer to Dr. Pamintuan, with the
last three referring to a study on thoracotomy. 11
_________________________________________________________________

11. To further buttress her allegations of intentional discrimination, Dr.
Pamintuan points to instances in the past involving alleged
discrimination on the part of Nanticoke Memorial towards its employees
and its patients. Her evidence ranges from the testimony of a hospital
employee concerning segregation of patients in the 1950s and 1960s to
an alleged study, a copy of which was not produced, prepared in 1979
reporting "community concern that there were too many foreign
physicians in the Emergency Room." Dr. Pamintuan contends that in
response to the aforementioned survey, Nanticoke Memorial
discriminatorily removed all of the Filipino physicians from its emergency
room. Dr. Pamintuan also proffers the testimony of several former

                               11
D. Nanticoke Memorial's Rebuttal Evidence

To rebut Dr. Pamintuan's allegations that she was
singled out for discipline because of her race, Nanticoke
Memorial offered evidence that between 1990 and 1996, six
physicians other than Dr. Pamintuan were the subject of
quality review that resulted in some form of action
(voluntary or otherwise). One of the disciplined physicians
was Filipino; the other five were Caucasian. Dr. Pamintuan
contends that none of these physicians or situations is
comparable to the case at bar.

Nanticoke Memorial also proffers its history of Filipino
leadership in the medical staff. Between 1972 and 1994,
the period when Dr. Pamintuan had privileges at the
hospital, six Filipinos and five Caucasians served as
president of the medical staff. Persons elected to be
president serve a two-year term as president-elect and a
two-year term as president. The president-elect and
president also serve on the board of directors of Nanticoke
Memorial.

II.

Section 1981 prohibits "racial" discrimination in the
making of private and public contracts. See St. Francis
College v. Al-Khazraji, 481 U.S. 604, 609 (1987). We analyze
section 1981 claims under the familiar McDonnell Douglas
shifting burden framework used in Title VII discrimination
cases. See McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973); Stewart v. Rutgers, The State Univ., 120 F.3d 426,
432 (3d Cir. 1997). Under this standard, Dr. Pamintuan
had the burden of presenting a prima facie case of
discrimination. To establish such a case under section
1981, Dr. Pamintuan was required to produce some
_________________________________________________________________

employees of the hospital indicating that they may have been the victims
of discrimination. Nanticoke Memorial disputes this evidence. As the
District Court correctly noted, because of the temporal remoteness of the
segregation, the failure to produce the study, and the absence of any
connection between the individuals involved in the alleged discrimination
and those involved in the review of Dr. Pamintuan's performance, most,
if not all, of this evidence would not be admissible at trial.

                               12
evidence that would demonstrate that Nanticoke Memorial
intentionally discriminated against her because she
belonged to an "identifiable class[ ] of persons who are
subjected to intentional discrimination solely because of
their ancestry or ethnic characteristics." See St. Francis
College, 481 U.S. at 612, 107 S. Ct. at 2028.12

Once Dr. Pamintuan established her prima facie case, the
burden shifted to Nanticoke Memorial to provide legitimate
non-discriminatory reasons for the suspension of Dr.
Pamintuan's privileges. If Nanticoke Memorial was able to
provide such justification, the burden reverted back to Dr.
Pamintuan to provide some evidence that these reasons
were pretextual. We have previously stated that, on this
point:

       [T]o avoid summary judgment, the plaintiff 's evidence
       rebutting the employer's proffered legitimate reasons
       must allow a factfinder reasonably to infer that each of
       the employer's proffered non-discriminatory reasons
       was either a post hoc fabrication or otherwise did not
       actually motivate the employment action (that is, the
       proffered reason is a pretext).

Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)
(citations omitted). We continued to note that the plaintiff
cannot rely on a showing that "the employer's decision was
wrong or mistaken" because the focus of the factual dispute
is "whether discriminatory animus motivated the employer,
not whether the employer is wise, shrewd, prudent, or
competent." Id. at 765 (citations omitted). This means that
the plaintiff must

       demonstrate such weaknesses, implausibilities,
       inconsistencies, incoherencies, or contradictions in the
       employer's proffered legitimate reasons for its action
       that a reasonable factfinder could rationallyfind them
       "unworthy of credence," and hence infer "that the
       employer did not act for [the asserted] non-
       discriminatory reasons." While this standard places a
_________________________________________________________________

12. Because our analysis turns on other areas, we will assume, without
deciding, that Dr. Pamintuan presented a prima facie case of
discrimination.

                                13
       difficult burden on the plaintiff, "[i]t arises from an
       inherent tension between the goal of all discrimination
       law and our society's commitment to free
       decisionmaking by the private sector in economic
       affairs."

Id. (citations omitted). With this standard in mind, we turn
to the specifics of this case.

First, we must determine whether Nanticoke Memorial
proffered legitimate, non-discriminatory reasons for its
decision to suspend Dr. Pamintuan. The record shows that
Nanticoke Memorial engaged in a multi-level review of Dr.
Pamintuan's fitness before concluding that her privileges
should be suspended because of quality of care concerns.
By the end of the internal review process, approximately
twenty of her peers had reviewed Dr. Pamintuan's case and
reached the conclusion that the suspension was justified by
the fact that her behavior presented serious quality of care
concerns for the patients of the hospital. Nanticoke
Memorial pointed to these quality of care concerns, based
on Dr. Pamintuan's pattern of inadequate record-keeping,
delays in providing treatment, poor medical judgment, and
disregard of hospital policies, as the reasons supporting the
decision to suspend Dr. Pamintuan's privileges. In addition,
Nanticoke Memorial notes that it offered a plan whereby Dr.
Pamintuan could retain her privileges if she agreed to
additional training and supervising. It was only after Dr.
Pamintuan refused this compromise that Nanticoke
Memorial took the final step of suspending her privileges.

Because Nanticoke Memorial has proffered these
legitimate, non-discriminatory reasons for its disciplinary
action, the burden shifts back to Dr. Pamintuan under
McDonnell Douglas "to demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or
contradictions" in the hospital's proffered reasons that a
reasonable fact-finder could conclude that the reasons were
pretextual and that the hospital had a discriminatory
motive. Id. Giving Dr. Pamintuan all reasonable inferences,
she cannot meet this burden.

To undermine Nanticoke Memorial's proffered reasons,
Dr. Pamintuan claims that Caucasian physicians had also

                               14
had charting and timeliness problems, but had not been
disciplined as severely as her. We note, however, that Dr.
Pamintuan's suspension was not based solely on her
deficiencies concerning charting and timeliness, but was
grounded in large part on Nanticoke Memorial's concerns
about the quality of care she was providing to the hospital's
patients.

Dr. Pamintuan asserts that her own statements that she
did not have significant clinical deficiencies were sufficient
to create a question for the fact-finder. We have recognized
that a plaintiff's own affidavit providing circumstantial
evidence of discrimination may in certain cases be
sufficient by itself to withstand a defendant's motion for
summary judgment. See Weldon v. Kraft, Inc., 896 F.2d
793, 800 (3d Cir. 1990); Jackson v. University of Pittsburgh,
826 F.2d 230, 236 (3d Cir. 1987). However, this is not such
a case.

The testimony offered by the plaintiffs in Weldon and
Jackson is distinguishable from that offered by Dr.
Pamintuan. In both Weldon and Jackson, the plaintiffs
offered testimony that, if believed, gave clear indication that
they were discriminated against and treated differently
because of their race. Here, Dr. Pamintuan's testimony is
essentially limited to the claim that her medical care was
not deficient. Notably, she does not claim that the
criticisms contained in the OB/GYN minutes were
incorrect, nor does she claim that the internal review
process produced findings that were untrue. Rather, her
deposition testimony merely asserts that the decision
regarding her competence as a physician was wrong. As
noted, Dr. Pamintuan cannot survive summary judgment
simply by alleging that Nanticoke Memorial's decision was
"wrong or mistaken." Fuentes, 32 F.3d at 765. Therefore,
these two cases do not further our analysis beyond
standing for the fact that, in some cases, a plaintiff 's
testimony may be sufficient to proceed past summary
judgment. However, were we to find that testimony such as
Pamintuan's was sufficient to survive summary judgment
on the issue of pretext, we would undermine the entire
McDonnell Douglas framework by drastically limiting the
possibility that summary judgment could be granted

                               15
because virtually any contrary testimony by a plaintiff
would preclude a grant of summary judgment to the
defendants.

Dr. Pamintuan also alleges that she is entitled to an
inference of pretext because the hospital did not conduct a
comparative review evaluating her performance in
comparison to that of other physicians at the hospital. This
argument fails because she has not alleged or offered any
evidence that any other physicians were granted a
comparative review when facing disciplinary proceedings.
So, rather than complaining that she was treated differently
from others because of her race, she appears to be
complaining that she was not treated differently. Indeed,
Dr. Pamintuan was accorded the same review process that
all Nanticoke Memorial physicians received. The extensive
multi-tiered review process went on for several months. Dr.
Pamintuan was allowed to present evidence and make
arguments at all the appropriate procedural times. While
Dr. Pamintuan may claim that a comparative review would
have benefitted her cause, the lack of such a review does
nothing to support her argument that she was
discriminated against based on her race.

Dr. Pamintuan's evidence was, for the most part,
anecdotal and inadmissable. Much of the evidence related
to events that occurred several years before any action was
taken against her.13 In short, Dr. Pamintuan has pointed to
no substantial evidence that contradicts or undermines
Nanticoke Hospital's legitimate reason for her suspension
-- concern about the quality of care that she was providing.

Thus, Dr. Pamintuan has failed to submit evidence from
which a reasonable factfinder could conclude that
Nanticoke Memorial's proffered legitimate, non-
discriminatory reasons for her suspension were pretextual.
Dr. Pamintuan was accorded a lengthy and intense review
process. Throughout the process, she was treated the same
_________________________________________________________________

13. The District Court correctly noted that much of the evidence relied
on by Dr. Pamintuan to show pretext would not be admissible at trial.
Therefore, it is not proper to consider such evidence on summary
judgment. See Pamintuan, 1998 WL 743680, at *11 (citing Wetzel v.
Tucker, 139 F.3d 380, 383 n.2 (2d Cir. 1998)).

                               16
as any other physician. Although she contends that the
ultimate decision reached by her peers was incorrect, more
must be shown to survive summary judgment. Therefore,
we affirm the District Court's grant of summary judgment
to Nanticoke Memorial on her various claims of racial
discrimination.14

III.

Dr. Pamintuan's final contention is that the District
Court erred when it held that Nanticoke Memorial was
immune from damages for the alleged violations of state law
under the Health Care Quality Improvement Act, 42 U.S.C.
S 11101 et seq. ("HCQIA").15 Under the HCQIA, a health
care provider is immune from suit brought as the result of
a "professional review action,"16 see 42 U.S.C. S 11111(a), if
the review action was undertaken:

         (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,
_________________________________________________________________

14. In light of our finding that Dr. Pamintuan failed to provide
sufficient
evidence that Nanticoke Memorial's proffered reasons were pretextual, we
need not address her argument that she was qualified as an employee
for Title VII purposes. The District Court ruled that she did not qualify
as an employee, and so lacked standing to bring a Title VII suit.
However, even if we were to favor Dr. Pamintuan's argument that she did
in fact qualify as an employee under Title VII, her Title VII suit would
also fail because it is subject to the same shifting burdens test that her
section 1981 suit failed to fulfill.

15. The HCQIA immunity provisions do not cover damages under section
1981. See 42 U.S.C. S 11111(a)(1).

16. A "professional review action" is defined as:

         an action or recommendation of a professional review body which is
         taken or made in the conduct of a 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. S 11151(9).

                        17
       (3) after adequate notice and hearing procedures are
       afforded to the physician involved or after such other
       procedure 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).

       A professional review action shall be presumed to have
       met the preceding standards necessary for [immunity]
       unless the presumption is rebutted by a preponderance
       of the evidence.

42 U.S.C. S 11112(a) (emphasis added). Therefore, under
the HCQIA, Dr. Pamintuan had the burden of establishing
that the hospital did not meet the standard for immunity.
See Brader v. Allegheny Gen. Hosp., 167 F.3d 832, 839 (3d
Cir. 1999). In other words, the HCQIA alters the summary
judgment burden because Dr. Pamintuan, the non-mover
for summary judgment, had the burden of demonstrating
that a reasonable fact finder could find by a preponderance
of the evidence that Nanticoke Memorial had not met the
above requirements and had acted unreasonably. The
District Court found that she failed to meet this burden. We
agree.

In the District Court, Dr. Pamintuan argued that
Nanticoke Memorial's refusal to undertake a comparative
analysis by examining the records of other physicians, and
its refusal to credit the testimony of her expert, Dr. Dyer,
sufficiently rebutted the statutory presumption. Dr.
Pamintuan also argues that the District Court'sfinding that
she had stated a claim for racial discrimination should
entitle her to survive summary judgment because a
decision based on race is per se unreasonable.

We judge Nanticoke Memorial's actions using an objective
test, thus the good or bad faith (or subjective motivations)
of the reviewers is irrelevant. See id. at 840. The
"reasonable belief " standard is satisfied "if the reviewers,
with the information available to them at the time of the
professional review action, would reasonably have
concluded that their actions would restrict incompetent

                               18
behavior or would protect patients." Id. (citations and
internal quotation marks omitted). Thus, Dr. Pamintuan's
argument that her allegations of discriminatory motivation
are sufficient to rebut the presumption of immunity under
the HCQIA is incorrect. Instead, under the first prong, Dr.
Pamintuan must show that the totality of the information
available to the Nanticoke Memorial reviewers did not
provide a basis for a reasonable belief that their actions
would further quality health care. Dr. Pamintuan failed to
make such a showing. Because the inquiry was reasonable,
and a reasonable factfinder could not find an absence of a
reasonable basis for the actions of Nanticoke Memorial and
the Committee, the District Court correctly held that the
HCQIA precluded the award of state law damages to Dr.
Pamituan.

Dr. Pamintuan's arguments actually address the second
requirement -- "after a reasonable effort to obtain the facts
of the matter." First, she claims that the review was
unreasonable because Nanticoke Memorial refused to
consider the records of other OB/GYNs at the hospital. The
Ninth Circuit Court of Appeals has previously dealt with
this argument under the HCQIA. See Smith v. Ricks, 31
F.3d 1478 (9th Cir. 1994). The court stated:

       [The doctor's] challenge to [the] investigation is that he
       was not permitted to discover or introduce evidence
       regarding the conduct of other doctors. [The doctor]
       essentially claims he was not the worst doctor at[the
       hospital]. However, nothing in the statute, legislative
       history, or case law suggests the competency of other
       doctors is relevant in evaluating whether [the hospital]
       conducted a reasonable investigation into [a doctor's]
       conduct.

Id. at 1486 (emphasis added). We agree with the Ninth
Circuit Court of Appeals. The focus of our inquiry under the
HCQIA is not whether Dr. Pamintuan was or was not a
substandard doctor in comparison to the other OB/GYNs at
Nanticoke Memorial, but whether Nanticoke Memorial's
disciplinary actions were justified after a reasonable effort
to obtain the facts of the matter. It was not necessary for

                               19
the hospital to gather evidence of other doctors' records to
fulfill the reasonable fact gathering requirement. 17

Looking at the "totality of the process leading up to"
Nanticoke Memorial's professional review action, it is clear
that the hospital made a reasonable effort to obtain the
facts of the matter. Matthews v. Lancaster Gen. Hosp., 87
F.3d 624, 637 (3d Cir. 1996). The lengthy review process
took place in front of several evaluators over a period of
several months. The inquiry culminated with approximately
twenty-five hours of hearings before Nanticoke Memorial's
Judicial Review Committee. Dr. Pamintuan was allowed to
present all of her evidence and arguments before the
Judicial Review Committee made its decision. Because the
inquiry was reasonable, and a reasonable fact finder could
not objectively find that either Nanticoke Memorial's or the
Committee's actions were not motivated by a reasonable
belief that the actions would be in furtherance of quality
health care, the District Court correctly held that the
HCQIA precluded the award of state law damages to Dr.
Pamintuan.

IV.

Because Dr. Pamintuan failed to provide sufficient
evidence that Nanticoke Memorial's decision to suspend her
privileges was pretextual and because she failed to rebut
the presumption of immunity under the HCQIA, we affirm
the District Court's grant of summary judgment to
Nanticoke Memorial.
_________________________________________________________________

17. Dr. Pamintuan's other challenge to Nanticoke Memorial's fact
gathering process is that the hospital improvidently rejected the
testimony of her expert, Dr. Dyer. In her brief, Dr. Pamintuan claims
that the Dr. Dyer's testimony was precluded by some objection by
Hospital counsel. Appellant's Brief at 28. However, looking at the record,
it appears that the Hospital Committee simply chose not to adopt her
expert's testimony and suggestions to use more cases for evaluation.


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A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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