Freilich v. Upper Chesapeake Health, Inc. , 313 F.3d 205 ( 2002 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LINDA FREILICH, M.D., P.A.; LINDA 
FREILICH, M.D.,
Plaintiffs-Appellants,
v.
UPPER CHESAPEAKE HEALTH,
INCORPORATED, formerly know as
Harford Memorial Hospital;
BOARD OF DIRECTORS OF UPPER
CHESAPEAKE HEALTH, INCORPORATED,
formerly known as Harford
Memorial Hospital; CECILIO T.
CAMACHO, M.D., as a Director and
individually; JOAN P. EDWARDS,
M.D., as a Director and
individually; SCOTT S. HASWELL,  No. 01-1890
M.D., as a Director and
individually; SHIRLEY S. KLEIN, as a
Director and individually; JAMES
LAMBDIN, as a Director and
individually; ANTHONY J. MEOLI, as
a Director and individually; LYLE E.
SHELDON, as a Director and
individually; DAVID F. GONANO, as a
Director and individually; SHERIF H.
OSMAN, M.D., as a Director and
individually; ROGER E. SCHNEIDER,
M.D., as a Director and
individually; DIANE K. FORD, as a
Director and individually;

2 FREILICH v. UPPER CHESAPEAKE HEALTH
H. WILLIAM ACKER, as a Director 
and individually; RANDALL
WORTHINGTON, SR., as a Director
and individually; UNITED STATES OF 
AMERICA; STATE OF MARYLAND,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, Chief District Judge.
(CA-00-3605-S)
Argued: October 29, 2002
Decided: December 13, 2002
Before WILKINSON, Chief Judge, and WIDENER and
KING, Circuit Judges.
Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Widener and Judge King joined.
COUNSEL
ARGUED: Paul Steven Blumenthal, LAW OFFICE OF PAUL S.
BLUMENTHAL, P.A., Annapolis, Maryland, for Appellants. Jona-
than Barkasy Sprague, POST & SCHELL, P.C., Philadelphia, Penn-
sylvania, for Appellees Upper Chesapeake Health, et al.; Wendy Ann
Kronmiller, Assistant Attorney General, Baltimore, Maryland, for
Appellee State of Maryland; Katherine Sutherland Dawson, Appellate
Staff, Civil Division, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for Appellee United States. ON BRIEF:
Jennifer M. Valinski, LAW OFFICE OF PAUL S. BLUMENTHAL,
P.A., Annapolis, Maryland, for Appellants. Brian M. Peters, POST &
FREILICH v. UPPER CHESAPEAKE HEALTH 3
SCHELL, P.C., Philadelphia, Pennsylvania, for Appellees Upper
Chesapeake Health, et al. J. Joseph Curran, Jr., Attorney General of
Maryland, Baltimore, Maryland, for Appellee State of Maryland.
Robert D. McCallum, Jr., Assistant Attorney General, Thomas M.
DiBiagio, United States Attorney, Mark B. Stern, Alisa B. Klein,
Appellate Staff, Civil Division, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellee United States.
OPINION
WILKINSON, Chief Judge:
Dr. Linda Freilich is a physician. Harford Memorial Hospital
decided to terminate Dr. Freilich’s medical staff privileges after
undertaking an extensive review of her application for reappointment.
Dr. Freilich then filed a complaint challenging the constitutionality of
the federal statute granting immunity to peer review participants and
the Maryland physician credentialing statutes. In addition, Dr.
Freilich alleged violations of both the Americans with Disabilities Act
and the Rehabilitation Act and made various other common law
claims. Dr. Freilich’s complaint is an attempt to have a federal court
supervise what amounts to little more than a physician-hospital dis-
pute over hospital policies and the expenditure of hospital resources.
We affirm the judgment of the district court dismissing her claims.
Freilich v. Bd. of Dir. of Upper Chesapeake Health, Inc., 142 F.
Supp. 2d 679 (D. Md. 2001).
I.
Dr. Linda Freilich is a Board Certified Internist and Nephrologist
who maintained unrestricted hospital privileges at defendant Harford
Memorial Hospital (HMH), a private, non-profit hospital, from 1982
until April 12, 2000. During her tenure at HMH, Dr. Freilich states
she advocated the rights of her patients in order to improve their qual-
ity of care. Specifically, Dr. Freilich complained that the outsourcing
of quality assurance and oversight services for dialysis patients led to
an improper standard of care.
4 FREILICH v. UPPER CHESAPEAKE HEALTH
Maryland state regulations require physicians to apply for reap-
pointment every two years. See Code of Maryland Regulations
(COMAR) § 10.07.01.24. During the reappointment process, each
hospital must collect specific information about the physician appli-
cant. The hospital then must analyze the physician’s pattern of perfor-
mance based upon seven factors, including "adherence to hospital
bylaws, policies, and procedures" and "attitudes, cooperation, and
ability to work with others." Id. Pursuant to COMAR regulations,
HMH Medical Staff Bylaws provide that HMH will consider in the
reappointment process "ethics and behavior in the Hospital, coopera-
tion with Hospital personnel as it relates to patient care or the orderly
operation of the Hospital, and general demeanor and attitude with
respect to the Hospital, its patients and its personnel."
In July, 1998, Dr. Freilich applied for reappointment to HMH. Her
application went through several layers of review, passing before the
HMH Credentials Committee, the Medical Executive Committee, and
the Appellate Review Committee. Further, Dr. Freilich received a
hearing before the Ad Hoc Hearing Committee. Although the differ-
ent committees disagreed on whether to accept or reject Dr. Freilich’s
application, on April 11, 2000, HMH’s Board of Directors voted to
deny Dr. Freilich’s application and terminated her medical privileges.
In a letter to Dr. Freilich explaining the basis for its decision, the
Board quoted the "ethics and behavior" language in the HMH Bylaws.
On December 11, 2000, Dr. Freilich filed a 14-count, 76-page com-
plaint against HMH and fourteen individuals who were involved in
her peer review (collectively the "hospital defendants"), the State of
Maryland, and the United States. The complaint alleged that HMH
and its Board of Directors denied Dr. Freilich’s application for reap-
pointment because she did nothing more than advocate the rights of
her patients. Specifically, Dr. Freilich alleged that the Health Care
Quality Improvement Act (HCQIA), 42 U.S.C. § 11101 et seq., which
provides qualified immunity from damages to persons who participate
in physician peer review, and the Maryland statute and regulations
governing physician credentialing, Health-General Article § 19-
319(e) and COMAR § 10.07.01.24(E), are all unconstitutional. She
also brought a claim under 42 U.S.C. § 1983 against the hospital
defendants, contending that the termination of her staff privileges vio-
lated her constitutional rights. Finally, Dr. Freilich alleged violations
FREILICH v. UPPER CHESAPEAKE HEALTH 5
of both the Americans with Disabilities Act (ADA) and the Rehabili-
tation Act (RA).
In an extensive opinion, the district court dismissed the federal
claims with prejudice and the state law claims without prejudice.
Freilich v. Bd. of Dir. of Upper Chesapeake Health, Inc., 142 F.
Supp. 2d 679 (D. Md. 2001). Dr. Freilich now appeals. We review a
dismissal for failure to state a claim de novo, Eastern Shore Mkts.,
Inc. v. J.D. Assoc. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000), and
assume the facts as stated in the complaint are true. See Jenkins v.
Medford, 119 F.3d 1156, 1159 (4th Cir. 1997) (en banc).
II.
Dr. Freilich brings several constitutional challenges to the Health
Care Quality Improvement Act, 42 U.S.C. § 11101 et seq. The
HCQIA limits liability in damages for those who participate in profes-
sional peer review. For HCQIA immunity to attach, however, the peer
review action must comport with due process. More specifically, 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 ade-
quate notice and hearing procedures are afforded;" and (4) "in the rea-
sonable belief that the action was warranted by the facts known after
such reasonable effort to obtain facts." 42 U.S.C. § 11112. The
HCQIA also sets forth detailed standards to ensure that a physician
receives adequate notice and a hearing and exempts any claim alleg-
ing a civil rights violation or claims for declaratory or injunctive
relief. Id.A.
We first address Dr. Freilich’s due process and equal protection
challenges to the HCQIA. Dr. Freilich first alleges that the HCQIA
violates the Fifth Amendment because it "authorizes and encourages
the Defendants [to] act irresponsibly in matters of credentialing, reap-
pointment to the hospital staff, and wrongful denial of hospital privi-
leges. . . ."1 Because the HCQIA does not burden any fundamental
1
Dr. Freilich argues that her challenge arises under the Fourteenth
Amendment. The HCQIA is a federal law. Dr. Freilich’s due process and
6 FREILICH v. UPPER CHESAPEAKE HEALTH
right or draw distinctions based on any suspect criteria, it is subject
only to rational basis review. Rational basis review is "a paradigm of
judicial restraint," FCC v. Beach Communications, Inc., 508 U.S. 307,
314 (1993), which prohibits us from "sit[ting] as a super-legislature
to judge the wisdom or desirability of legislative policy determina-
tions." City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per
curiam). According a strong presumption of validity to the HCQIA,
we thus need only determine whether the HCQIA is rationally related
to a legitimate governmental purpose. See Beach Communications,
508 U.S. at 314-15 (1993).
The legitimacy of Congress’s purpose in enacting the HCQIA is
beyond question. Prior to enacting the HCQIA, Congress found that
"[t]he increasing occurrence of medical malpractice and the need to
improve the quality of medical care . . . [had] become nationwide
problems," especially in light of "the ability of incompetent physi-
cians to move from State to State without disclosure or discovery of
the physician’s previous damaging or incompetent performance." 42
U.S.C. § 11101. The problem, however, could be remedied through
effective professional peer review combined with a national reporting
system that made information about adverse professional actions
against physicians more widely available. However, Congress also
believed that "[t]he threat of private money damage liability under
Federal laws, including treble damage liability under Federal antitrust
law, unreasonably discourage[d] physicians from participating in
effective professional peer review." Id. Congress therefore enacted
the HCQIA in order to "facilitate the frank exchange of information
among professionals conducting peer review inquiries without the
fear of reprisals in civil lawsuits. The statute attempts to balance the
chilling effect of litigation on peer review with concerns for protect-
ing physicians improperly subjected to disciplinary action." Bryan v.
James E. Holmes Regional Med. Ctr., 33 F.3d 1318, 1322 (11th Cir.
1994).
Dr. Freilich’s complaint lists seventeen alleged defects with the
statute, such as permitting hearsay during the hearing proceedings and
equal protection challenges therefore more properly arise under the Fifth
Amendment. See Int’l Sci. & Tech. Inst., Inc. v. Inacom Communica-
tions, Inc., 106 F.3d 1146, 1156 (4th Cir. 1997).
FREILICH v. UPPER CHESAPEAKE HEALTH 7
permitting the denial of privileges when there are no findings of
incompetent behavior by the physician. Apparently, she would like
this court to rewrite the HCQIA. Opinions may differ on what is the
most effective way to improve the quality of our nation’s health care
system. However, we cannot substitute our judgment, or that of Dr.
Freilich, for Congress’s rationally based belief that the HCQIA is an
effective means to achieve its goal. See Heller v. Doe, 509 U.S. 312,
333 (1993).
B.
The HCQIA adopts an objective reasonableness test. As noted ear-
lier, the HCQIA only applies if a peer review action is taken in the
reasonable belief that the action was taken (1) after a reasonable effort
to obtain the facts; (2) after adequate notice and hearing procedures
are afforded the physician involved; (3) in the reasonable belief that
the action was warranted by the facts; and (4) in the reasonable belief
that the action was in the furtherance of quality health care. 42 U.S.C.
§ 11112(a), (b). The standard, then, is one of objective reasonableness
after looking at the "totality of the circumstances." Imperial v. Subur-
ban Hospital Assoc., 37 F.3d 1026, 1030 (4th Cir. 1994).
Dr. Freilich alleges that the HCQIA is unconstitutionally vague in
violation of the Due Process Clause. She contends that the HCQIA
reasonableness standard governing peer review immunity "authorizes,
encourages, and permits HMH to act with impunity" because the
"HCQIA does not specify what constitutes ‘reasonable belief.’"
Dr. Freilich’s vagueness challenge is an odd one. To begin with,
the HCQIA reasonableness standard does not even apply to Dr.
Freilich’s own conduct. Rather, it is a standard that a peer review
body must meet in order to obtain immunity for its actions.
And the HCQIA’s objective reasonableness standard is a perfectly
valid guide for peer review bodies. The "reasonable belief" standard
embodies the discretion that health care professionals have tradition-
ally exercised in determining whether or not their peers meet a requi-
site level of professional competence. See, e.g., Doyle v. Bowen, 660
F. Supp. 1484 (D. Me. 1987), vacated on other grounds, 848 F.2d 296(1st Cir. 1988). Courts respect this discretion because "[a]ny attempt
8 FREILICH v. UPPER CHESAPEAKE HEALTH
to catalog every medical practice that would fall into the prohibited
category would result in the sort of encyclopedic and unwieldy statute
[already] rejected as unnecessary." Id. at 1493. See also, Assoc. of
Am. Physicians and Surgeons v. Weinberger, 395 F. Supp. 125, 138
(N.D. Ill. 1975) (noting the difficult task of "drafting [a] . . . statute
with sufficient specificity to give the physicians, practitioners and
providers of health care service adequate notice of the new require-
ments of the law and at the same time to maintain enough flexibility
to cover a variety of medical cases").
Furthermore, reasonableness standards have been consistently
upheld in the context of qualified immunity. See, e.g., Trulock v.
Freeh, 275 F.3d 391, 399 (4th Cir. 2001) ("Qualified immunity
shields government officials from civil liability ‘insofar as their con-
duct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’") (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In cases brought
under 42 U.S.C. § 1983, courts commonly apply an objective reason-
ableness standard to afford public officers sufficient latitude to prop-
erly perform discretionary functions. See, e.g., Gooden v. Howard
County, 954 F.2d 960, 964 (4th Cir. 1992) (en banc). We therefore
hold that the HCQIA reasonableness standard provides sufficient
guidance to withstand a vagueness challenge.
C.
Dr. Freilich next alleges that the HCQIA violates the Tenth
Amendment of the United States Constitution and Article Three of the
Maryland Declaration of Rights by "invad[ing] subjects traditionally
governed by state law," and by "attempting to immunize conduct
otherwise actionable under state law."2
The Tenth Amendment provides that "[t]he powers not delegated
to the United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people." U.S.
Const. amend. X. A Tenth Amendment inquiry consists of two parts.
2
We construe "guarantees in the Declaration of Rights to be in pari
materia with similar provisions of the federal constitution." Patterson v.
Maryland, 741 A.2d 1119, 1128 (Ct. App. Md. 1999).
FREILICH v. UPPER CHESAPEAKE HEALTH 9
First we must determine whether Congress has the constitutional
power to enact the HCQIA. United States v. Johnson, 114 F.3d 476,
480 (4th Cir. 1997) (citing New York v. United States, 505 U.S. 144(1992)). If we answer this inquiry in the affirmative, we then ask
whether the means of regulation employed by Congress impermiss-
ibly infringe upon state sovereignty. Id.Congress has the power under the Commerce Clause to enact stat-
utes governing physician peer review. Hospitals are regularly engaged
in interstate commerce, performing services for out-of-state patients
and generating revenues from out-of-state sources. Summit Health,
Ltd. v. Pinhas, 500 U.S. 322, 329-30 (1991). And the Supreme Court
has already held that because "[r]eports concerning peer review pro-
ceedings are routinely distributed across state lines and affect doctors’
employment opportunities throughout the Nation," there is "no doubt
concerning the power of Congress to regulate a peer review process."
Id. at 327-28, 332.
Having found that Congress has the power to enact the HCQIA, we
now ask whether the means employed infringe upon state sovereignty.
Johnson, 114 F.3d at 480. We hold that they do not. The HCQIA does
not commandeer the state legislature or executive. "It does not require
. . . [the Maryland Legislature] to enact any laws or regulations, and
it does not require state officials to assist in the enforcement of federal
statutes regulating private individuals." Reno v. Condon, 528 U.S.
141, 151 (2000). The HCQIA does not compel states to implement a
federal regulatory program either. Under the HCQIA, health care pro-
viders are required to collect and report information to the State
Board of Medical Examiners. See 42 U.S.C. § 11133(a). The State
Board of Medical Examiners then forwards that information to a fed-
eral data bank. But more is required than the expenditure of time and
effort on the part of state officials in order to offend the Tenth
Amendment. See Condon, 528 U.S. at 150. "Any federal regulation
demands compliance. That a State wishing to engage in certain activ-
ity must take administrative and sometimes legislative action to com-
ply with federal standards regulating that activity is a commonplace
that presents no constitutional defect." South Carolina v. Baker, 485
U.S. 505, 514-15 (1988).
All that the HCQIA requires of states is the forwarding of informa-
tion. And the HCQIA specifically provides that "nothing in this part
10 FREILICH v. UPPER CHESAPEAKE HEALTH
shall be construed as changing the liabilities or immunities under law
or as preempting or overriding any State law which provides incen-
tives, immunities, or protection for those engaged in a professional
review action that is in addition to or greater than that provided by
this part." 42 U.S.C. § 11115. We thus agree with the district court’s
conclusion that the HCQIA "does not require the state to do anything
that the state itself has not already required, authorized, or provided
by its own legislative command." Freilich, 142 F. Supp. 2d at 696.
In sum, the HCQIA does not come close to offending the Tenth
Amendment.
III.
We next turn to Dr. Freilich’s claims against the hospital under
Titles II and III of the Americans with Disabilities Act (ADA) and
under the Rehabilitation Act (RA).3 To the extent possible, we con-
strue similar provisions in the two statutes consistently. See Ennis v.
Nat’l Ass’n of Bus. and Educ. Radio, Inc., 53 F.3d 55, 57 (4th Cir.
1995). Dr. Freilich makes three claims, which we address in turn.
A.
Dr. Freilich brings her first ADA claim on behalf of her dialysis
patients. Dr. Freilich alleges that HMH violated the ADA and the RA
by providing in-hospital quality assurance and oversight for all hospi-
tal services provided by contractors except for dialysis services. See
3
Dr. Freilich also brings a section 1983 claim against the hospital
defendants based on their decision to terminate her hospital privileges.
The hospital defendants are all private actors. Therefore in order to prop-
erly bring a section 1983 claim against them, Dr. Freilich must not only
demonstrate that a constitutional violation occurred, but must also show
that their actions can be properly characterized as those of the state.
American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999). The
Maryland credentialing statute and regulation both require hospitals to
establish a formal reappointment process. But the State plays no role
whatsoever in the actual decision as to whether or not to terminate or
reappoint any particular physician. Because the private hospital defen-
dants cannot properly be considered state actors, Dr. Freilich’s section
1983 claim is dismissed.
FREILICH v. UPPER CHESAPEAKE HEALTH 11
42 U.S.C. §§ 12132, 12182; 29 U.S.C. § 794. Quality assurance and
oversight for dialysis services is provided by an outside contractor.
We do not reach the merits of this claim, however, because Dr.
Freilich lacks standing to bring such a claim on behalf of her patients.
Our standing inquiry "involves both constitutional limitations on
federal-court jurisdiction and prudential limitations on its exercise."
Warth v. Seldin, 422 U.S. 490, 498 (1975). Even if a plaintiff satisfies
Article III standing requirements, "[f]ederal courts must hesitate
before resolving a controversy, even one within their constitutional
power to resolve, on the basis of the rights of third persons not parties
to the litigation." Singleton v. Wulff, 428 U.S. 106, 113 (1976). To
overcome the prudential limitation on third-party standing, a plaintiff
must demonstrate: (1) an injury-in-fact; (2) a close relationship
between herself and the person whose right she seeks to assert; and
(3) a hindrance to the third party’s ability to protect his or her own
interests. Powers v. Ohio, 499 U.S. 400, 410-11 (1991).
The district court held that even assuming the existence of the first
two elements, Dr. Freilich did not sufficiently allege a hindrance to
her patients’ ability to protect their own interests. Freilich, 142 F.
Supp. 2d at 699. Here Dr. Freilich fails to allege sufficient obstacles
to the patients bringing suit themselves. The district court correctly
pointed out that "the dialysis patients and indigent patients on whose
behalf Dr. Freilich advocated are not constrained in bringing suit by
any obstacles made known in the Complaint." Freilich, 142 F. Supp.
2d at 699. In her submission to this court, Dr. Freilich argues that
dialysis patients are disabled and chronically ill, foreclosing them
from presenting their own rights. But we cannot simply assume that
every disabled or chronically ill person is incapable of asserting his
or her own claims. In fact, such persons are typical and frequent
plaintiffs under both the ADA and RA. Faced, then, with no evidence
that Dr. Freilich’s dialysis patients are hindered from presenting their
own claims, we adhere to the longstanding principle that "third parties
themselves usually will be the best proponents of their own rights."
Singleton, 428 U.S. at 114.
B.
Next, Dr. Freilich asserts a claim of associational discrimination
under the ADA. See 42 U.S.C. § 12182(b)(1)(E). Dr. Freilich alleges
12 FREILICH v. UPPER CHESAPEAKE HEALTH
that HMH denied her reappointment because of her "patient advo-
cacy." Under Title III of the ADA, 42 U.S.C. § 12182(b)(1)(E), it is
discriminatory to "exclude or otherwise deny equal goods, services,
facilities, privileges, advantages, accommodations, or other opportu-
nities to an individual or entity because of the known disability of an
individual with whom the individual or entity is known to have a rela-
tionship or association." There is little case law applying this provi-
sion. We therefore look for guidance from a similar provision in Title
I of the ADA which governs associational discrimination in employ-
ment. See 42 U.S.C. § 12112(b)(4).
The associational discrimination provision in Title I "was intended
to protect qualified individuals from adverse job actions based on
‘unfounded stereotypes and assumptions’ arising from the employees’
relationships with particular disabled persons." Oliveras-Sifre v.
Puerto Rico Dept. of Health, 214 F.3d 23, 26 (1st Cir. 2000) (citing
Barker v. Int’l Paper Co., 993 F. Supp. 10, 15 (D. Me. 1998)). In
Oliveras-Sifre, the plaintiffs alleged that they were punished for their
advocacy on behalf of AIDS patients. However, the First Circuit
rejected the plaintiffs’ contention that the defendants’ actions violated
the associational discrimination provision of the ADA. The plaintiffs
did not allege "a specific association with a disabled individual."
Instead, they "contend[ed], in essence, that they were punished for
their advocacy on behalf of individuals with AIDS." Id. In Barker, the
court granted summary judgment in favor of the defendants along the
same lines: the plaintiff alleged that he was terminated because of his
advocacy on behalf of the plaintiff’s disabled wife, which was held
insufficient to support an associational discrimination claim. 993 F.
Supp. at 15.
Dr. Freilich’s allegations suffer from similar defects as the allega-
tions in Oliveras-Sifre and Barker. Dr. Freilich alleges that HMH "co-
erced, intimidated, threatened, or interfered . . . with [her] because she
exercised rights protected by the ADA," and that HMH discriminated
against her because she refused "to end her advocacy of the dialysis
patients’ rights that were being violated under [the] ADA." She fur-
ther alleges that she was "denied equal use of facilities, privileges,
advantages or other opportunities because of her association with and
her relationship to patients with disabilities." But such generalized
references to association with disabled persons or to advocacy for a
FREILICH v. UPPER CHESAPEAKE HEALTH 13
group of disabled persons are not sufficient to state a claim for associ-
ational discrimination under the ADA. Every hospital employee can
allege at least a loose association with disabled patients. To allow Dr.
Freilich to proceed on such a basis would arm every hospital
employee with a potential ADA complaint. A step of that magnitude
is for Congress, not this court, to take.
C.
Finally, Dr. Freilich brings a claim for retaliatory discharge under
the ADA and the RA. She alleges that HMH terminated her hospital
privileges "because she strongly opposed and voiced her concerns
about HMH’s practices in treating dialysis patients." Specifically, Dr.
Freilich contends that her opposition to HMH’s decision to outsource
quality oversight and quality assurance over dialysis services consti-
tutes protected conduct under the ADA. Under 42 U.S.C. § 12203,
"[n]o person shall discriminate against any individual because such
individual has opposed any act or practice made unlawful by this
chapter or because such individual made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or hear-
ing under this chapter." (emphasis added). In order to establish a
prima facie case of retaliation, a plaintiff must allege (1) that she has
engaged in conduct protected by the ADA; (2) that she suffered an
adverse action subsequent to engaging in the protected conduct; and
(3) that there was a causal link between the protected activity and the
adverse action. Rhoads v. FDIC, 257 F.3d 373, 392 (4th Cir. 2001).
In reviewing retaliation claims, courts recognize the need to balance
the desire to encourage employees to oppose unlawful discrimination,
with "an employer’s interest in maintaining a harmonious, productive
and loyal workforce." Fitch v. Solipsys Corp., 94 F. Supp. 2d 670,
678 (D. Md. 2000).
A plaintiff need not establish that the conduct she opposed actually
constituted an ADA violation. Ross v. Communications Satellite
Corp., 759 F.2d 355, 357 n.1 (4th Cir. 1985). But a complainant must
allege the predicate for a reasonable, good faith belief that the behav-
ior she is opposing violates the ADA. E.g., Weissman v. Dawn Joy
Fashions, Inc., 214 F.3d 224, 234 (2nd Cir. 2000).
14 FREILICH v. UPPER CHESAPEAKE HEALTH
In her complaint, Dr. Freilich alleges what at most are violations
of state medical malpractice law, not infractions of the ADA. Dr.
Freilich says that she complained orally and/or in writing regarding
the failure to transport a patient in a timely manner; the failure to
adhere to skin protocols; the failure to address concerns regarding
uncertified nurses; the failure to diagnose a cervical fracture on a
patient; the unsupervised dialysis of a patient; and the failure to pro-
vide correct dialysis services for several patients. While we do not
overlook the importance of maintaining adequate levels of patient
care, it is not the job of a federal court under the ADA to referee dis-
agreements between a hospital and staff physician over what consti-
tutes the appropriate funding or manner of such care. In essence, Dr.
Freilich disagrees with the level of care being provided to some hos-
pital patients, which she attributes to the outsourcing of quality assur-
ance and quality oversight for dialysis patients.4 She could not,
however, reasonably believe that her disagreement with HMH over
the expenditure of hospital resources constituted a violation of the
ADA.
Every disagreement over the adequacy of hospital expenditures or
the provision of patient care is not an ADA issue. If it were, courts
would be drawn into medical resource disputes quite beyond their
expertise and hospital personnel would be diverted by litigation from
their primary task of providing medical attention to those in their
charge. Hospitals are in the business of serving persons with many
kinds of disabilities, and we have noted that "our federal disability
statutes are not designed to ensure that persons with one type of dis-
ability are treated the same as persons with another type of disability."
Lewis v. Kmart Corp., 180 F.3d 166, 171-72 (4th Cir. 1999). Recog-
nizing that the medical community is best equipped to conduct the
balancing that medical resource allocations inevitably require, Con-
gress declined to give courts a mandate to arbitrate such disputes.
4
It is not even clear that the provision of in-house quality assurance
and quality oversight is a good, service, or advantage under the ADA.
Rather, as the district court noted, quality assurance and oversight
"seems more to be a service rendered to the hospital and practitioners."
Freilich, 142 F. Supp. 2d at 702.
FREILICH v. UPPER CHESAPEAKE HEALTH 15
Because Dr. Freilich has failed to allege any set of facts supporting
her claim that she opposed practices made unlawful by the ADA, we
affirm the district court’s dismissal of her retaliation claim.
IV.
We turn finally to Dr. Freilich’s due process challenge to the Mary-
land statute and regulation which govern the credentialing process.
Maryland Code Health-General Article § 19-319(e) governs the
hospital credentialing process for physicians. Under the statute, hospi-
tals must establish a credentialing process for physicians who are
employed by or have staff privileges at the hospital. The statute fur-
ther requires the Secretary of Health and Mental Hygiene to establish
minimum standards for a credentialing process, which must include,
among other things, a formal, written reappointment process to be
conducted at least every two years. The reappointment process must
document the physicians’ pattern of performance by "analyzing
claims filed against the physician, data dealing with utilization, qual-
ity, and risk, a review of clinical skills, adherence to hospital bylaws,
policies and procedures, compliance with continuing education
requirements, and mental and physical status." Id.
Pursuant to § 19-319(e), COMAR § 10.07.01.24(E) requires each
hospital in the state of Maryland to establish a process for the reap-
pointment of physicians. As part of the reappointment process, hospi-
tals must "collect, verify, review, and document" the physicians’
pattern of performance based on an analysis of the following: "(i)
claims filed against the physician; (ii) utilization, quality and risk
data; (iii) a review of clinical skills; (iv) adherence to hospital bylaws,
policies, and procedures; (v) compliance with continuing medical
education requirements; (vi) an assessment of current mental and
physical health status; and (vii) attitudes, cooperation, and ability to
work with others." Id.
Dr. Freilich alleges that Maryland’s credentialing regulation,
COMAR § 10.07.01.24(E), violates due process. Specifically, Dr.
Freilich alleges that she was deprived of "her liberty to practice her
chosen profession in the locale where she has practiced for 18 years"
because "Health-General Article, § 19-319 and the COMAR regula-
16 FREILICH v. UPPER CHESAPEAKE HEALTH
tion § 10.07.01.24(E) permit Hospital administrators to deny hospital
privileges based solely upon the vague, ambiguous, and subjective
‘attitude’ criterion."
The statute and regulation will survive a vagueness challenge so
long as each provides physicians with reasonable notice as to the type
of conduct that may cause a denial of their hospital privileges. See
Village of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S.
489, 498-99 (1982). As we pointed out earlier, a provision cannot par-
ticularize every different set of facts and circumstances that might
lead a peer review committee to conclude that a physician’s privileges
should be terminated. Hospitals have historically had wide discretion
to make decisions regarding their medical staff. See, e.g., Glass v.
Doctors Hosp., Inc., 131 A.2d 254 (Md. 1957). "The governing board
of a hospital must[ ] be given great latitude in prescribing the neces-
sary qualifications for potential applicants." Woodbury v. McKinnon,
447 F.2d 839, 845 (5th Cir. 1971). This includes the consideration of
factors beyond technical medical skills. Schlein v. Milford Hosp., 423
F. Supp. 541, 544 (D. Conn. 1976) ("Due process does not limit the
hospital’s consideration to technical medical skills.").
Dr. Freilich’s vagueness argument would lead the uninformed
observer to believe that a Maryland hospital can terminate a physi-
cian’s privileges solely on a subjective determination that the physi-
cian had a bad attitude. This is untrue. Dr. Freilich ignores the fact
that the COMAR regulation requires hospitals to assess a physician’s
pattern of performance based upon seven separate factors. The regula-
tion does not authorize or encourage private "hospitals to terminate a
physician’s privileges solely because of his/her ‘[a]ttitudes, coopera-
tion, and ability to work with others.’" Complaint ¶ 89. By its own
terms, the regulation requires hospitals to employ a broad based, for-
mal written reappointment process that considers numerous criteria.
COMAR § 10.07.01.24(E)(3)(b).
Furthermore, most courts that have considered the use of criteria
such as attitude and cooperation in a hospital’s reappointment deci-
sions have refused to interfere with the discretion given to hospitals
over substantive credentialing decisions, so long as those criteria are
not applied arbitrarily. For example, in Sosa v. Board of Managers of
the Val Verde Memorial Hospital, 437 F.2d 173 (5th Cir. 1971), the
FREILICH v. UPPER CHESAPEAKE HEALTH 17
Fifth Circuit considered a constitutional challenge to the Val Verde
Memorial Hospital Credential Committee’s use of "character, qualifi-
cations, and standing" in reviewing applicants seeking admission to
the hospital medical staff. Id. at 176 (internal citation omitted). The
court admitted that "standards such as ‘character, qualifications, and
standing’ are very general, but . . . recognize[d] that in the area of per-
sonal fitness for medical staff privileges precise standards are difficult
if not impossible to articulate. The subjectives of selection simply
cannot be minutely codified. The governing board of a hospital must
therefore be given great latitude in prescribing the necessary qualifi-
cations for potential applicants." Id. Because "[n]o court should sub-
stitute its evaluation of . . . [professional competency] for that of the
Hospital Board," our review is limited to "assuring that the qualifica-
tions imposed by the Board are reasonably related to the operation of
the hospital and fairly administered." Id. at 177.
The Fifth Circuit is hardly alone in its view. Courts across the
country have upheld bylaws employing similar factors as Maryland’s
regulation. Freilich, 142 F. Supp. 2d at 689. In Yashon v. Hunt, 825
F.2d 1016 (6th Cir. 1987), the Sixth Circuit held that "a physician’s
unprofessional conduct, incompatibility and lack of cooperation on a
hospital staff are appropriate considerations for denying staff privi-
leges." Id. at 1027 (citing Stretten v. Wadsworth Veterans Hosp., 537
F.2d 361, 368 (9th Cir. 1976)). See also Mahmoodian v. United Hosp.
Center, Inc., 404 S.E.2d 750, 758 (W. Va. 1991) (finding "an ability
to work with others" a "reasonably definite standard proscribing the
conduct upon which the [clinical privileges] revocation or other
adverse action is based"). Today’s health care environment has
become increasingly complex. As Dr. Freilich’s complaint itself dem-
onstrates, the operation of a hospital requires the coordination of
numerous employees and departments, each with different responsi-
bilities that build and depend upon each other. Thus, staff cooperation
and communication are essential to ensuring a high quality of patient
care. Disruptive behavior in the workplace can not only affect the
morale and teamwork of the staff itself, but in so doing cause actual
harm to patients. A hospital’s evaluation of a physician’s attitude and
ability to work with others is not unduly vague and is directly related
to the goal of good patient care. Accordingly, we reject Dr. Freilich’s
challenge to Maryland’s physician credentialing system.
18 FREILICH v. UPPER CHESAPEAKE HEALTH
V.
Dr. Freilich’s complaint invites courts to enmesh themselves in
hospital governance. Both Congress and the Maryland legislature
have proceeded in precisely the opposite direction, affording hospital
authorities both the discretion and the protection to discharge their
assigned tasks. We decline to interfere with these legislative judg-
ments and affirm the judgment of the district court dismissing plain-
tiff’s claims.
AFFIRMED