Manion v. Evans

• Citation: 986 F.2d 1036
• Decision Date: 26 February 1993
• Docket Number: No. 92-3313,92-3313
• Parties: , 61 USLW 2523, 1993-1 Trade Cases P 70,135 William L. MANION, M.D., Plaintiff-Appellee, v. George EVANS, M.D., Defendant, Lima Memorial Hospital and Gregory Turner, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 1036

986 F.2d 1036

121 A.L.R.Fed. 705, 61 USLW 2523,

1993-1 Trade Cases P 70,135

William L. MANION, M.D., Plaintiff-Appellee, v. George EVANS, M.D., Defendant, Lima Memorial Hospital and Gregory Turner, Defendants-Appellants.

No. 92-3313.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 1, 1992.

Decided Feb. 26, 1993.

Richard M. Kerger, Marshall & Melhorn, Toledo, OH, Charles William Bair (argued and briefed), Wagoner, Steinberg, Chinnis & Dorf, Holland, OH, for plaintiff-appellee.

Michael J. Malone (briefed), Julie A. Davenport, Oxley, Malone, Fitzgerald & Hollister, Findlay, OH, Eric Springer (briefed), Barbara Blackmond (argued and briefed), Horty, Springer & Mattern, Pittsburgh, PA, for defendants-appellants.

Catherine M. Ballard (briefed), James J. Hughes, Bricker & Eckler, Columbus, OH, amicus curiae Ohio Hosp. Ass'n, American Hosp. Ass'n.

Russell Iungerich (briefed), Los Angeles, CA, amicus curiae The Semmelweis Society.

Kimberly S. Davenport, California Medical Ass'n, San Francisco, CA, amicus curiae American Medical Ass'n, California Medical Ass'n, Ohio State Medical Ass'n.

Before: NORRIS and SILER, Circuit Judges; and EDGAR, District Judge. ^*

ALAN E. NORRIS, Circuit Judge.

Defendants Lima Memorial Hospital and its president, Gregory Turner, appeal the district court's denial of summary judgment in plaintiff Dr. William L. Manion's antitrust action based upon the theory of bad faith peer review. The district court held that there was a genuine issue of material fact regarding whether the Health Care Quality Improvement Act, 42 U.S.C. §§ 11101-11152, shielded defendants from liability. Because we conclude that the decision denying defendants' motion for summary judgment is not an appealable order, we dismiss the appeal.

I.

The early 1980s witnessed a new trend in health care litigation as states and health care accrediting bodies stepped up their promotion of peer review--the process by which physicians judge the competence of their fellow professionals and recommend disciplinary action for those found dangerously incompetent. As this process gathered force, physicians aggrieved by the results of peer review increasingly appeared in federal court claiming that the actions of their peers were anti-competitive and violated federal antitrust laws. Although hospitals and peer review participants generally prevailed in these lawsuits, the victories entailed costly and time-consuming litigation.

Congress attempted to remedy this situation in 1986 by enacting the Health Care Quality Improvement Act (HCQIA), 42 U.S.C. §§ 11101-11152. In the Act itself, Congress explained the purposes behind this particular piece of legislation:

The Congress finds the following:

(1) The increasing occurrence of medical malpractice and the need to improve the quality of medical care have become nationwide problems that warrant greater efforts than those that can be undertaken by any individual State.

(2) There is a national need to restrict the ability of incompetent physicians to move from State to State without disclosure or discovery of the physician's previous damaging or incompetent performance.

(3) This nationwide problem can be remedied through effective professional peer review.

(4) The threat of private money damage liability under Federal laws, including treble damage liability under Federal antitrust law, unreasonably discourages physicians from participating in effective professional peer review.

(5) There is an overriding national need to provide incentive and protection for physicians engaging in effective professional peer review.

42 U.S.C. § 11101.

The Act creates a form of protection from liability in damages for hospitals and peer review participants. Although it never actually uses the term "immunity," the Act provides that if a "professional review action" meets the Act's standards, the peer reviewers "shall not be liable in damages under any law of the United States or of any State ... with respect to the [professional review] action." 42 U.S.C. § 11111(a)(1).

To be entitled to this protection, peer reviewers must satisfy the four "standards" or conditions precedent provided in § 11112(a). That section requires that professional review action 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....

42 U.S.C. § 11112(a). The review action is presumed to have met these standards "unless the presumption is rebutted by a preponderance of the evidence." Id.

II.

In 1988, peer reviewers at Lima Memorial Hospital, acting on allegations of incompetency, suspended the clinical privileges of plaintiff, a pathologist at the hospital. After exhausting in-house appeals, plaintiff sued the hospital, its president, and the hospital's other pathologists in federal court, raising alleged antitrust violations and numerous state-law causes of action. The appealing defendants moved for summary judgment on the basis that they are immune from suit under HCQIA. The district court denied the motion because it concluded that there was a genuine dispute concerning whether defendants complied with the standards found in § 11112(a). It is that order from which defendants appeal.

III.

Plaintiff asserts that this court lacks jurisdiction to hear the appeal because the district court order is not appealable. Since, as a general rule, denial of summary judgment is not a final order under 28 U.S.C. § 1291, Switzerland Cheese Ass'n v. E. Horne's Market, Inc., 385 U.S. 23, 25, 87 S.Ct. 193, 195, 17 L.Ed.2d 23 (1966), the district court's decision must fit within the collateral order exception to the finality requirement of § 1291 in order to be appealable. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The decision must "finally determine claims of right separable from, and collateral to, rights asserted in the action." Id. at 546, 69 S.Ct. at 1225-26.

To come within the collateral order exception, an order must:

conclusively determine the disputed question[;]

resolve an important issue completely separate from the merits of the action[;] and

be effectively unreviewable on appeal from a final judgment.

Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978) (refining Cohen test). An order is effectively unreviewable on appeal from a final judgment when it involves an asserted right the practical value of which would be destroyed if it were not vindicated before trial. Midland Asphalt Corp. v. United States, 489 U.S. 794, 800, 109 S.Ct. 1494, 1498, 103 L.Ed.2d 879 (1989).

Relying upon this rationale, the Supreme Court has allowed immediate appeals from orders denying qualified immunity to public officials in actions brought by citizens alleging violations of rights guaranteed by the Constitution. Qualified immunity is "immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985). This "right not to stand trial," id., has been considered essential by the Supreme Court when it was asked to apply the collateral order exception in other contexts. In Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), the Court concluded that denial of a motion to dismiss an indictment on double jeopardy grounds was immediately appealable, since the defendant was "contesting the very authority of the Government to hale him into court." Id. at 659, 97 S.Ct. at 2040. See also Helstoski v. Meanor, 442 U.S. 500, 508, 99 S.Ct. 2445, 2449, 61 L.Ed.2d 30 (1979) (speech or debate clause designed to protect members of Congress "not only from the consequences of litigation's results but also from the burden of defending themselves.").

On the other hand, orders denying rights that do not include protection from burdensome litigation are not immediately appealable. For example, the denial of a motion to dismiss based upon an extradited person's immunity from civil process is not immediately appealable because the "right not to be burdened with a civil trial itself is not an essential aspect of this protection." Van Cauwenberghe v. Biard, 486 U.S. 517, 525, 108 S.Ct. 1945, 1951, 100 L.Ed.2d 517 (1988). In Van Cauwenberghe, the Court underscored the narrow scope of the collateral order exception:

The critical question, following Mitchell, is whether "the essence" of the claimed right is a right not to stand trial. This question is difficult because in some sense, all litigants who have a meritorious pretrial claim for dismissal can reasonably claim a right not to stand trial. But the final-judgment rule requires that except in certain narrow circumstances in which the right would be "irretrievably lost" absent an immediate appeal, litigants must abide by the district court's judgments, and suffer the concomitant burden of a trial, until the end of proceedings before gaining appellate review.

Id. at 524, 108 S.Ct. at 1950 (citations omitted). See also Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 109 S.Ct. 1976, 104 L.Ed.2d 548 (1989) (order denying motion to dismiss on basis of forum selection clause not immediately appealable).

Moreover, the Supreme Court has warned lower courts to exercise restraint when considering whether a particular right includes protection from the exigencies of trial. "One must be careful ... not to play word games with the concept of a 'right not to be tried.' ... A right not to be tried in the sense relevant...