Stevinson v. Howley, 95-2619

• Citation: 99 F.3d 1131
• Decision Date: 27 September 1996
• Docket Number: No. 95-2619,95-2619
• Parties: NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Charles STEVINSON; Muhammad Ali; Allanah Cleary; Anne Coors; Itaf Daou; Gretchen Heinrich; Barbara Keller; Patricia Hawley; John Mckee; Norman Kuhl, Plaintiffs-Appellees, and Frank Barnett; Charles Kropp; Edmund Hourigan, Plaintiffs, v. Daniel J. HOWLEY, M.D.; Alfred C. Higgins, M.D.; Jane A. Gehlsen, M.D., Defendants-Appellants. . Argued:
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1131

99 F.3d 1131

NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Charles STEVINSON; Muhammad Ali; Allanah Cleary; Anne

Coors; Itaf Daou; Gretchen Heinrich; Barbara

Keller; Patricia Hawley; John Mckee;

Norman Kuhl, Plaintiffs-Appellees, and Frank Barnett; Charles Kropp; Edmund Hourigan, Plaintiffs, v. Daniel J. HOWLEY, M.D.; Alfred C. Higgins, M.D.; Jane A.

Gehlsen, M.D., Defendants-Appellants.

No. 95-2619.

United States Court of Appeals, Fourth Circuit.

Argued: September 27, 1996.

Decided: October 29, 1996.

ARGUED: Joel Wyman Collins, Jr., COLLINS & LACY, P.C., Columbia, SC; Albert Parker Barnes, Jr., PARKER A. BARNES, JR. & ASSOCIATES, Beaufort, SC, for Appellants. Arthur Camden Lewis, LEWIS, BABCOCK & HAWKINS, L.L.P., Columbia, SC, for Appellees. ON BRIEF: Rebecca M. Monroy, COLLINS & LACY, P.C., Columbia, SC; David S. Black, PARKER A. BARNES, JR. & ASSOCIATES, Beaufort, SC, for Appellants. Elmer P. Kulmala, Thomas A. Pendarvis, Anne D. Zuckerman, LEWIS, BABCOCK & HAWKINS, L.L.P., Columbia, SC, for Appellees.

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

OPINION

PER CURIAM:

The plaintiffs, who are patients of Dr. Rajko D. Medenica, sued three other doctors associated with Hilton Head Hospital (the "Hospital"), alleging among other things that the three defendant doctors engaged in unfair and unreasonable peer review of Dr. Medenica in order to provoke the withdrawal of his privileges at the Hospital. After the district court granted the plaintiffs' motion to dismiss their action with prejudice, the court denied the motion of the three defendant doctors for attorneys' fees under Fed.R.Civ.P. 41(a)(2) and the Health Care Quality Improvement Act, 42 U.S.C. § 11101 et seq. (the "Act"). The defendants appeal the fee denial, and we affirm.

I.

According to the district court, Dr. Medenica used "controversial medical techniques" (intra-arterial therapy and plasmapheresis), JA 176, 172, and "[b]y the fall of 1990 criticism of Dr. Medenica's practices was a sensitive issue at the hospital," id. at 176. The Hospital's Medical Executive Committee appointed the three defendant doctors in this case, Daniel J. Howley, Alfred C. Higgins and Jane A. Gehlsen, as a "peer review" committee to evaluate Dr. Medenica's professional competence and conduct.

Certain actions by the defendants during peer review led several devoted patients of Dr. Medenica to conclude that the defendants were unfairly attempting to discredit him and deprive him of privileges at the Hospital. The result, the patients feared, would be that they could no longer be treated by Dr. Medenica. As a result of these concerns, several patients sued the three defendants, seeking damages for interference with the doctor-patient relationship and seeking to enjoin the defendants from interfering with Dr. Medenica's privileges at the Hospital. After discovery the defendants moved for summary judgment on the ground that they were immune from suit under the Act because they were simply undertaking a fair and reasonable peer review. See 42 U.S.C. §§ 11111, 11112. The district court, however, denied the summary judgment motion, noting that "several questionable acts of Defendants ... raised a genuine issue of material fact as to the bona fides of Defendants in their purported peer review activities." JA 174.

In the meantime, there were other developments that affected this case. The Hospital came under new ownership and administration. Thereafter, the Hospital and Dr. Medenica negotiated an agreement that "allowed Dr. Medenica to continue treating his patients under certain prescribed conditions." Id. at 179. This satisfied the main concern of the plaintiffs and mooted their claim for injunctive relief. The plaintiffs therefore moved for a voluntary dismissal of their action with prejudice, and the defendants countered with a motion for attorneys' fees under Fed.R.Civ.P. 41(a)(2) (voluntary dismissal "at the plaintiff's instance" to be "upon such terms and conditions as the court deems proper") and section 11113 of the Act (allowing fees if, among other things, "the claim or the claimant's conduct during the litigation of the claim was frivolous, unreasonable, without foundation, or in bad faith").

The district court granted the motion to dismiss immediately, and the decision on the defendants' motion for attorneys' fees came after further consideration. The district court's key factual determinations on the motion for fees may be summarized as follows:

-- One defendant, Dr. Gehlsen, wrote a derogatory letter to the American Cancer Society about Dr. Medenica. The letter contained "confidential medical information gained from Dr. Gehlsen's nighttime review of Dr. Medenica's patient files. Dr. Gehlsen had not secured the patients' permission to share this information." JA 177.

-- Another defendant, Dr. Howley, did the following: "As part of Dr. Howley's purported peer review of Dr. Medenica, Dr. Howley in 1990 telephoned certain of Dr. Medenica's patients and lied about his identity, calling himself 'Dr. Smith' of Hilton Head Hospital." Id. at 179. The Medical Executive committee sharply reprimanded Dr. Howley for this conduct.

-- Another defendant, Dr. Higgins, wrote letters to several agencies and a health...