Patel v. Midland Memorial Hospital & Medical Center ( 2002 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
____________
No. 00-51265
____________
PV PATEL, MD, individually; PV PATEL, MD, A Professional
Association; THE HEART CENTER; ECHO LAB
INCORPORATED; ASSOCIATES OF MIDLAND
CARDIOVASCULAR AND INTERNAL MEDICINE, A
Professional Association, also known as Midland Cardiovascul,
Plaintiffs - Appellants-Cross-Appellees,
versus
MIDLAND MEMORIAL HOSPITAL AND MEDICAL CENTER;
ET AL,
Defendants,
MIDLAND MEMORIAL HOSPITAL AND MEDICAL CENTER;
MEMORIAL HEART AND VASCULAR INSTITUTE; PERMIAN
CARDIOLOGY GROUP; STEPHEN BROWN, MD; MICHAEL
MILLER, MD; JAY MENDEZ, MD; DONALD LOVEMAN, MD;
HAROLD RUBIN,
Defendants - Appellees - Cross-
Appellants
Appeals from the United States District Court
for the Western District of Texas
July 10, 2002
Before JONES, EMILIO M. GARZA, and STEWART, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
P.V. Patel, M.D., (“Dr. Patel”) filed suit in district court against Midland Memorial Hospital
and several of its doctors (collectively “the Defendants”) for claims arising out of the hospital’s
summary suspension of all of his clinical privileges in January 1999.1 Specifically, Dr. Patel alleged
that the Defendants, by participating in the suspension of his privileges: (1) denied him pre-suspension
due process in violation of 42 U.S.C. § 1983 (2000); (2) engaged in racial discrimination in violation
of 42 U.S.C. § 1981 (2000); (3) engaged in an illegal monopoly and attempted to monopolize in
violation of 15 U.S.C. §§ 1 & 2 (2000) and TEX. BUS. & COM. CODE ANN. § 15.05 (Vernon 2001);
and (4) engaged in conduct that constituted breach of contract, defamation, and interference with
contractual relationships. The district court granted the Defendants’ motion for summary judgment
on all of Dr. Patel’s claims. Dr. Patel now appeals on the ground that genuine issues of material fact
exist with respect to all of his claims. The Defendants cross-appeal arguing that under the Health
Care Quality Improvement Act of 1986 (HCQIA), 42 U.S.C. §§ 11101-11152 (2000), they are
immune from all of Dr. Patel’s claims, except for his civil rights claims, and are entitled to reasonable
attorneys’ fees.
I
Dr. Patel is a board-certified cardiologist who specializes in invasive and interventional
cardiology.2 He joined the staff of Midland Memorial Hospital (“Midland”), a public hospital, in
1
Four associations in which Dr. Patel has an interest—P.V. Patel, M.D., Professional
Association; The Heart Center; Associates of Midland Cardiovascular & Internal Medicine,
Professional Association; and Echo Lab, Inc.—were also named plaintiffs in the suit.
2
Invasive cardiology includes angiograms or studies on the coronary arteries in a cardiac
catheterization laboratory. Interventional cardiology includes procedures on coronary arteries in a
cardiac cath lab, including the placement of a balloon or angioplasty, the placement of stents, and
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1982. While at Midland, he continuously expanded his practice by obtaining new clinical privileges
and increasing the volume of procedures he performed. By the mid-1990s, he performed one of the
highest numbers of cardiac interventions of the hospital staff. Dr. Patel also expanded his practice
outside of Midland by maintaining a practice at Odessa Medical Center and opening his own cardiac
cath labs and primary care clinics, at times competing with Midland and members of its staff. For
fifteen years, Dr. Patel appears to have practiced successfully without any significant problems.
Two incidents in 1997 and 1998, however, drew the attention of Midland’s Medical Executive
Committee (MEC) to Dr. Patel’s practice. In November 1997, the MEC investigated an altercation
between Dr. Patel and a nurse in front of a patient just before a procedure. Questions were raised
as to whether Dr. Patel properly secured the patient’s consent to continue with the procedure and
whether he waited for a new nurse to arrive before beginning the procedure. The MEC ultimately
suspended Dr. Patel’s clinical privileges for fourteen days and ordered him to undergo a behavioral
evaluation.
Six months later, the MEC received its second complaint regarding Dr. Patel’s practice. The
chairman of Midland’s Department of Radiology reported to the MEC that Dr. Patel had “an
inordinate number of catastrophic outcomes” among his recent cases of noncardiac peripheral
vascular interventions. The MEC directed an ad hoc committee of eight cardiology, vascular surgery,
and radiology physicians to review Dr. Patel’s problematic cases. After reviewing three cases handled
by Dr. Patel in the preceding eight months, the committee reported several concerns to the MEC.
Specifically, the committee cited concerns regarding Dr. Patel’s technical performance of procedures,
his intra-procedure decisionmaking, and the accuracy of his documentation. The MEC then met to
rotablater therapy.
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discuss the cases and the committee’s report, and voted unanimously to revoke Dr. Patel’s noncardiac
peripheral privileges. While a post-suspension hearing was pending, the MEC sought independent
review of three of Dr. Patel’s cases by two outside experts. Both confirmed that the revocation was
appropriate.3
At the same meeting during which it revoked Dr. Patel’s peripheral privileges, the MEC
charged the Cardiovascular Committee with reviewing Dr. Patel’s diagnostic and interventional
cardiac procedures “to ensure that a similar pattern is not emerging.” In response, Stephen Brown,
M.D., Chair of the Cardiology Committee, reviewed the last six fatalities in cases handled by Dr.
Patel. In a report made to John Foster, Jr., M.D., Chairman of the MEC,4 Dr. Brown noted several
concerns with each of the cases and concluded that Dr. Patel’s management of them warranted
further investigation. He recommended sending the cases for outside review to avoid any issues of
bias on the part of Dr. Patel’s competitors. As a result, Dr. Foster sent ten of Dr. Patel’s cardiology
cases to Richard A. Lange, M.D., Director of the Cardiac Catheterization Laboratory at the
University of Texas Southwestern Medical Center at Dallas, for outside review.
3
The MEC sent records from Dr. Patel’s cases to Richard L. Vogelzang, M.D., Professor of
Radiology and Chief of Vascular and Interventional Radiology at Northwestern Memorial Hospital
in Chicago, Illinois, and Frank J. Rivera, M.D., Depart ment of Radiology Imaging at Baylor
University Medical Center in Dallas, Texas. Dr. Vogelzang stated in his report that Dr. Patel “lacks
basic technical skill in the performance of [peripheral interventions],” “lacks understanding of the
clinical management of peripheral vascular disease,” and “has had an unusually and unacceptably high
rate of major complications and catastrophic outcomes.” Dr. Vogelzang also noted “significant and
marked discrepancies” in Dr. Patel’s recordkeeping, including a report that a patient had “returned
to his home in an improved condition,” when in fact he had died. Dr. Rivera similarly criticized Dr.
Patel’s basic knowledge, skills, and judgment in performing peripheral interventions. With respect
to Dr. Patel’s record keeping, Dr. Rivera reported: “Because of the severity of the discrepancies, one
cannot help but be concerned that these are not simple errors, but in fact a blatant attempt to give
false information.”
4
Although initially named as a defendant, Dr. Foster has since been dismissed from this case.
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While Dr. Lange conducted his outside review, the Cardiovascular Committee continued its
inside review. At its bi-monthly meeting to review the morbidity/mortality cases of cardiologists at
the hospital, the Committee reviewed Dr. Patel’s recent morbidity/mortality cases and noted a “high
concentration of severe complications.”5 The Committee then forwarded a report to Dr. Foster
stating that Dr. Patel was “not operating in a safe fashion” while performing certain coronary
procedures and that the situation was “very dangerous.”6 The report again recommended outside
review by an unbiased third party, and potentially a reevaluation of Dr. Patel’s privileges depending
on the outcome of that report.
Dr. Foster then requested that the Medical Control Committee (MCC)7 review the
Cardiovascular Committee reports regarding Dr. Patel’s cardiology cases. The MCC met to discuss
the cases, but decided to wait for the results of Dr. Lange’s review, which were expected within the
week, before acting. One week later, Dr. Lange reported to Dr. Foster that six of the ten patients
whose cases he reviewed died as a “direct result of an interventional procedure” that was performed
by Dr. Patel: (a) without clear indication, (b) wit h poor technical skills, or (c) in coronary vessels
poorly suited for the procedure. Dr. Lange also found problems in the cases that suggested poor
medical judgment. Two days later, the MCC reviewed Dr. Lange’s report and voted to recommend
5
Although the Committee included thirteen members at the time of the meeting, the only three
doctors in attendance were Dr. Brown, Dr. Miller, and Dr. Barnett, all members of the Permian
Cardiology Group and competitors of Dr. Patel’s. Dr. Barnett was initially named a defendant in this
case, but has since been voluntarily dismissed.
6
The Committee’s report was written by Dr. Miller, but was submitted to the MEC under Dr.
Brown’s name.
7
The MCC consists of the chiefs of each section in the Department of Medical Services and
other members of the Department of Medicine appointed by the department chairman.
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the suspension of all of Dr. Patel’s privileges. Upon the MCC’s request, the MEC met to consider
the evidence and the recommendation for suspension. After deliberation, the MEC unanimously
approved the MCC’s recommendation that Dr. Patel’s privileges be summarily suspended.8
Dr. Patel was notified of his suspension by letter. The MEC then informed him that he had
a right to a post-suspension hearing under Midland’s Fair Hearing Plan. Dr. Patel immediately
requested a full due process hearing and the hospital offered to provide one two weeks later.
Thereafter, an Ad Hoc Hearing Committee (“Hearing Committee”) held ten meetings in which Dr.
Patel and the hospital submitted documentary evidence and testified regarding the events leading up
to the suspension and the hospital’s continued concerns about the quality of Dr. Patel’s practice.
After hearing testimony from eight physicians and reviewing over 125 exhibits, the Hearing
Committee ultimately concluded that Dr. Patel was not a danger to his patients. Instead, the Hearing
Committee faulted Dr. Patel’s inadequate documentation—including his failure to note on patients’
records major complications that occurred during procedures—for the questionable appearance of
his cases. As a result, the Hearing Committee recommended that Dr. Patel’s clinical privileges be
rest ored, but that he be placed on probation for six months to ensure that he prepare timely and
accurat e medical records for each of his patients at Midland. Although the Hearing Committee
recommended restoration of his privileges, it also held that there were “reasonable grounds” for the
action taken by the various doctors and hospital committees reviewing Dr. Patel’s cases prior to the
suspension. In addition, the Hearing Committee held that the participating doctors acted “in
8
Only two of the defendants in this case participated in this vote—J.E. Mendez, M.D.,
Midland’s Chief of Staff and Chairman of the MEC, and Donald Loveman, M.D., Chairman of the
MCC. Two other defendants attended the meeting, but could not participate in the vote—Harold
Rubin, Pharm. D., Midland’s President and CEO since 1991 and a non-voting member of the MEC,
and Dr. Brown.
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reasonable belief that such action was in furtherance of quality health care,” and “in reasonable belief
that [action] was warranted by the facts known after a reasonable effort to obtain the facts.” Finally,
the Hearing Committee held that Dr. Brown, Dr. Miller, and Dr. Lange—the authors of three of the
reports reviewing Dr. Patel’s cases—“acted at all times without malice, without fraudulent or
wrongful intent, and without any ulterior or improper motive.”9
After his privileges were restored, Dr. Patel filed suit against Midland, four of the eleven
members of the MEC who voted to suspend him, the three cardiologists reviewing his cases on behalf
of the Cardiovascular Committee, the Permian Cardiology Group, and Memorial Heart and Vascular
Institute.10 Specifically, Dr. Patel alleged that, by contributing to his suspension, the Defendants: (1)
denied him pre-suspension due process in violation of 42 U.S.C. § 1983; (2) engaged in racial
discrimination in violation of 42 U.S.C. § 1981; (3) engaged in an illegal monopoly and attempted
to monopolize in violation of 15 U.S.C. §§ 1 & 2 and TEX. BUS. & COM. CODE ANN. § 15.05; and
(4) engaged in conduct that constituted breach of contract, defamation, and interference with
contractual relationships. The district court dismissed all of Dr. Patel’s claims on summary judgment,
9
The Hearing Committee did not review the MEC’s 1998 suspension of Dr. Patel’s peripheral
privileges, which were still suspended at the time oral argument was heard on this case.
10
Dr. Patel named the following Midland doctors as defendants: 1) Dr. Foster, Chairman of
the MEC in 1998; 2) Dr. Rubin, Midland’s President and CEO since 1991, and a non-voting member
of the MEC; 3) Dr. Loveman, Chairman of the MCC; 4) Dr. Mendez, Midland’s Chief of Staff and
Chairman of the MEC in 1999; 5) Dr. Brown, Chairman of Midland’s Cardiovascular Committee; 6)
Dr. Miller, a member of the Cardiovascular Committee; and 7) Dr. Barnett, a member of the
Cardiovascular Committee. Dr. Patel later voluntarily dismissed Drs. Foster and Barnett as
defendants in this case. In addition to Midland and the individual doctors, Dr. Patel named Memorial
Heart and Vascular Institute (“Memorial Heart”) and the Permian Cardiology Group as defendants.
Memorial Heart operated a cardiac catheterization laboratory in Midland between March 1998 and
December 1999. The Permian Cardiology Group, of which Drs. Brown, Miller, and Barnett are
members, competes with Dr. Patel at Midland for cardiology services.
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but failed to reach the Defendants’ claim for immunity and attorneys’ fees under HCQIA. Both sides
now appeal.
II
We review a district court’s grant of summary judgment de novo. Grenier v. Med. Eng’g
Corp., 243 F.3d 200, 203 (5th Cir. 2001). Summary judgment is appropriate if “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and t hat the moving party is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). On a motion for summary judgment, a court must review the facts in the light most
favorable to the non-movant. Walker v. Thompson, 214 F.3d 615, 624 (5th Cir. 2000).
On appeal, Dr. Patel contends that he has presented sufficient evidence to create genuine
issues of material of fact with respect to all of his claims. After reviewing the evidence in the record
and the relevant law, we disagree. We address each claim separately below.
III
Dr. Patel first contends that the district court erred in granting summary judgment in favor
of the Defendants on his procedural due process claim.11 Specifically, he argues that, as a matter of
law, due process required that he receive notice and some opportunity to be heard on the allegations
11
It is undisputed that Dr. Patel had a protected property interest in his clinical privileges at
Midland Memorial Hospital, a political subdivision of the State of Texas. As a result, Dr. Patel could
not constitutionally be deprived of those privileges without due process of law. We assume without
deciding that Dr. Patel’s January 1999 suspension is a deprivation to which the protections of due
process apply. See Gilbert v. Homar, 520 U.S. 924 (1997) (assuming without deciding that a
suspension infringes on a protected property interest).
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against him before his clinical privileges could be suspended.12 Because Midland and the doctors
deprived him of such process prior to his January 1999 suspension, he argues that he is entitled to
relief under 42 U.S.C. § 1983.13
Dr. Patel is correct that due process generally requires notice and an opportunity to be heard
prior to the deprivation of a protected property interest. See, e.g., Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 542 (1985). It is well settled, however, that “[p]rocedural due process
is a flexible concept whose contours are shaped by the nature of the individual’s and the state interests
in a particular deprivation.” Caine v. Hardy, 943 F.2d 1406, 1412 (5th Cir. 1991) (en banc); Gilbert,
520 U.S. at 929. In some cases, “where a state must act quickly, or where it would be impractical
to provide predeprivation process,” postdeprivation process is enough to satisfy the requirements of
due process. Gilbert, 520 U.S. at 930.
We have previously considered en banc the pre-suspension pro cess due a physician where
patient safety was considered to be at risk. In Caine v. Hardy, an anesthesiologist at a public hospital
was suspended after an investigation of the death of one of his patients revealed serious deficiencies
in his performance. Caine, 943 F.2d at 1407-08. Believing that Dr. Caine posed a danger to his
patients, the hospital suspended him without first affording him a formal hearing. We held that, under
such exigent circumstances, where the safety of the public is at risk, an adequate post-suspension
remedy satisfies the requirements of due process. Caine, 943 F.2d at 1412.
12
To be sure, Dr. Patel only challenges as inadequate his pre-suspension process. He concedes
that his post-suspension hearing comported with the requirements of due process. He also does not
challenge the process afforded him, both before and after, his 1997 and 1998 suspensions.
13
Section 1983 creates a cause of action against any person who, under color of law,
“subjects, or causes to be subjected,” a person “to the deprivation of [a constitutional right].” 42
U.S.C. § 1983.
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In the case before us, the MEC had ample reason to believe that Dr. Patel’s methods posed
a danger to patient safety. As an initial matter, concern for Dr. Patel’s cardiology interventions
developed in connection with an investigation of deficiencies in his peripheral intervention practice
and a suspension of those privileges. The MEC then initiated an investigation of Dr. Patel’s
cardiology practice to protect against similar dangers. At the time the MEC voted to suspend Dr.
Patel’s privileges, it had before it a report from Dr. Brown asserting serious concerns with Dr. Patel’s
performance; a report from the Cardiovascular Committee finding a “high concentration of severe
complications” in Dr. Patel’s recent morbidity/mortality cases; an outside review from Dr. Lange
concluding that six of the ten patients whose cases he reviewed died as a “direct result of an
interventional procedure” performed by Dr. Patel; and the recommendation of the MCC, after
independently reviewing the cases discussed in the Cardiovascular Committee’s report, that Dr.
Patel’s privileges be suspended immediately. In light of the consistent findings before the MEC, the
MEC reasonably concluded that it had no choice but to act quickly to protect patient safety.14
Because pre-suspension process was not practical under these circumstances, Dr. Patel’s due process
14
In an effort to call into question the reason given for his suspension—patient safety—Dr.
Patel attempts to discredit the individual reports relied upon by the MEC. Specifically, Dr. Patel
challenges the credentials of his reviewers and questions the fact that each reviewer examined only
a small percentage of his cases. Although Dr. Patel may be correct that a more thorough
investigation would have shown him not to be a danger, this possibility does not affect the
reasonableness of the MEC’s investigation under the difficult circumstances of this case. As noted
above, the MEC took several steps to substantiate its concerns prior to making its final decision to
suspend. It sought several separate reviews of Dr. Patel’s cases in order to obtain different
perspectives before making its decision. It also specifically sought an additional review by a doctor
outside the hospital, who was not in direct competition with Dr. Patel, to avoid any appearance of
bias. The reviewers consistently found Dr. Patel to be an imminent danger and suggested that the
consequences of delaying action could be life-threatening. Under these circumstances, when time was
of the essence, we believe the MEC reasonably relied on the evidence before it when suspending Dr.
Patel.
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rights were not violated.
Dr. Patel contends that Caine does not resolve the question of whether he received adequate
pre-suspension process in t his case for two reasons. First, he argues that the summary judgment
record includes substantial evidence that he did not pose an “imminent danger” to patients at the time
of his suspension. Specifically, he notes that he did not have a significant malpractice record, that his
overall morbidity/mortality rate for cardiology intervention was the lowest at Midland in 1997 and
1998, and that five experts defended his technical skills and past performance at his post-suspension
hearing. He also notes that the Hearing Committee unanimously recommended that his privileges be
reinstated. At the very least, Dr. Patel contends, this evidence creates a genuine issue of material fact
for summary judgment purposes.
Although we acknowledge the evidence presented by Dr. Patel that he was not actually
dangerous at the time of his suspension, we believe Dr. Patel focuses on the wrong issue. When
determining the amount of process constitutionally due Dr. Patel prior to the January 1999 suspension
of his privileges, the key question is not whether Dr. Patel was actually a danger, but whether the
MEC had reasonable grounds for suspending him as a danger. Gilbert, 520 U.S. at 933 (stating that
the purpose of pre-suspension process, assuming it is even required, is “to assure that there are
reaso nable grounds to support the suspension”). We have already determined that, based on the
evidence before it, the MEC had such grounds. The fact that Dr. Patel was later able to produce
evidence to rebut the reports before the MEC does not call into question the reasonableness of the
MEC’s conclusion at the time it voted to suspend him. As a result, Dr. Patel’s attempt to create a
fact issue with respect to whether he was actually dangerous fails.
Second, Dr. Patel argues that even if we find that he was a danger at the time of his
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suspension, Caine requires more pre-suspension process than he was actually afforded. Specifically,
he notes that the physician in Caine had some notice of the investigation against him and that he was
able to attend two informal meetings relating to the charges prior to his suspension. Dr. Patel
contends that, according to the rule set forth in Caine, he was entitled to similar treatment before his
suspension.
We disagree with Dr. Patel’s reading of Caine. Although Dr. Patel is correct that the doctor
in Caine happened to receive some notice of the charges against him prior to his suspension, Caine
did not create a pre-suspension process requirement where patient safety is at risk. On the contrary,
Caine makes clear that “[n]ot even an informal hearing . . . must precede a deprivation undertaken
to protect the public safety.” Caine, 943 F.2d at 1412.
Because, under the particular circumstances of this case, prompt action was necessary to
secure patient safety, we conclude that Dr. Patel received all the pre-suspension process he was
constitutionally due. As a result, the district court properly granted summary judgment to the
Defendants on this issue.15
IV
In his second point on appeal, Dr. Patel argues that the district court erred when it granted
summary judgment to the Defendants on his race discrimination claim. Specifically, Dr. Patel argues
that genuine issues of material fact exist as to the real reason for his suspension. According to Dr.
Patel, the Defendants did not suspend him because he was dangerous, but rather because he was
15
Because we conclude that Dr. Patel’s due process rights were not violated, we do not
address the individual defenses raised by Midland and the doctors to liability under § 1983.
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Indian. As a result, he argues that he is entitled to relief under 42 U.S.C. §§ 1981 & 1983.16
The summary-judgment test for discrimination claims under § 1981 and § 1983 is the same
as the test for discrimination claims under Title VII. Pratt v. City of Houston, 247 F.3d 601, 605 n.1
(5th Cir. 2001). To survive a summary judgment motion, the plaintiff must first present a prima facie
case of discrimination. See id. at 606 n.2. If established, a prima facie case raises an inference of
discrimination, and the burden shifts to the defendant to articulate a legitimate, nondiscriminatory
reason for its adverse decision. Id. at 606. If the defendant presents such a reason, then the inference
disappears, and the plaintiff must offer evidence that the proffered reason is a pretext for racial
discrimination. Id.
Assuming arguendo that Dr. Patel has presented a prima facie case of discrimination, Midland
and its doctors have proffered a legitimate, nondiscriminatory reason for his suspension. Specifically,
they contend that his privileges were suspended because of concerns for patient safety. Thus, in order
to survive summary judgment, Dr. Patel must proffer sufficient evidence of pretext to create a
question of fact for the jury that race, rather than patient safety, was t he real reason for his
suspension. Id.
Dr. Patel first attempts to show pretext by presenting evidence of what he alleges is a pattern
of discrimination against him by Midland and its doctors. According to Dr. Patel, his January 1999
suspension was only the latest example of the “aggressive and unfair competition” waged against him
16
Since Dr. Patel filed his principal brief, we have held that § 1981 does not provide a remedial
cause of action against local government entities and local government officials in their official
capacities. Oden v. Oktibbeha Cty., 246 F.3d 458, 463 (5th Cir. 2001). Recognizing that Oden
forecloses his discrimination claim against at the very least, Midland, Dr. Patel asks in his reply brief
for leave to seek a discrimination remedy under 42 U.S.C. § 1983. For purposes of this appeal, we
will assume arguendo that he has proceeded under both sections.
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from the time he joined Midland. In the early 1980s, he notes an incident during which the hospital
declined his offer to open a cardiac cath lab. According to Dr. Patel, the hospital’s former CEO
stated that “he would never do it with a foreign doctor.” The hospital later opened a cath lab with
a white doctor. Throughout the 1990s, Dr. Patel contends that Midl and repeatedly took steps to
expand its operations to directly compete with, and impede the development of, his practice.17
These instances of competition do not create a question of fact regarding pretext in this case.
As an initial matter, Dr. Patel fails to offer any evidence linking his 1999 suspension to these earlier
events. More importantly, even if Dr. Patel could connect these events to his 1999 suspension, he
still fails to create a question of fact for the jury that race motivated his suspension. See Price v. Fed.
Exp. Corp., 283 F.3d 715, 723-24 (5th Cir. 2002) (requiring evidence of pretext supporting “an
inference that racial discrimination was the real reason for the employment decision”); Pratt, 247 F.3d
at 606 (“After a [discrimination] case reaches the pretext stage, the question for summary judgment
is whether a rational fact finder could find that the employer discriminated against the plaintiffs on
the basis of race.” (emphasis added)). With only one exception, Dr. Patel fails to present any
evidence connecting any of Midland’s competitive moves to racial animus. The only instance cited
by Dr. Patel that might provide evidence of racial animus—where the former CEO of Midland
declined to open a cath lab with a “foreign doctor”—took place more than a decade before his
17
In his brief on appeal, Dr. Patel notes five examples of Midland’s alleged competitive
strategy against him: In 1990, the hospital bought the building where Dr. Patel operated an imaging
center and “moved his business out and replaced it with its own imaging center.” In 1992, after he
opened a primary care clinic in Big Springs, Texas, the hospital opened its own primary care clinic
there. In 1996, Dr. Patel opened a primary care clinic in Midland, Texas, and the hospital opened a
clinic across the street. In 1997, the hospital signed a long-term lease for a building in Kermit, Texas
that Dr. Patel was trying to buy for another clinic. Later that same year, after Dr. Patel opened
another cath lab, the hospital formed a joint venture with Permian Cardiology Group and two other
cardiologists to open a cath lab in direct competition with Dr. Patel’s new lab.
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suspension. The former CEO who allegedly made the statement is not a party to this case and does
not appear from the record to have had any involvement in Dr. Patel’s 1999 suspension. Based on
this evidence, no rational factfinder could conclude that Dr. Patel was suspended on account of his
race.18
Dr. Patel also attempts to show pretext vis-à-vis three racist comments made by members of
Midland’s staff during the late 1990s. First, in either 1996 or 1997, Dr. Patel alleges that Dr. Miller
referred to him twice as a “sand nigger” and stated that he was “probably parking his camel.” Dr.
Miller then scheduled one of his non-emergency patients ahead of one of Dr. Patel’s patients for a
procedure. Dr. Miller later wrote the Cardiovascular Committee’s report criticizing Dr. Patel’s
handling of cases and describing him as “very dangerous.” Second, in 1997 or 1998, Dr. Patel alleges
that another person at Midland who was probably a cardiologist made the following statement: “[Dr.
Patel] is nothing but a god damn Indian quack and I want him out of here. I want his ass out of
here.” Finally, soon after the second comment was made, an administrator allegedly stated, after
hearing a complaint about the room conditions of one of Dr. Patel’s patients, that “he didn’t care
18
Dr. Patel also suggests that the inadequacy of the investigation into his practice evinces
pretext. Specifically, he contends that, in light of the summary judgment evidence that he was not
a danger at the time of his suspension, a rational factfinder could conclude that the investigation into
his practice was a sham. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000)
(stating that in some cases, a “trier of fact can reasonably infer from the falsity of the explanation that
the employer is dissembling to cover up a discriminatory purpose”). We disagree. Because we have
already concluded that the MEC’s decision to suspend was objectively reasonable based on the
evidence before it, and that it had no reason to doubt the apparent quality of that evidence, the
evidence of “falsity” here is not sufficient to create an inference that patient safety was merely a cover
for discriminatory intent. Id. at 148 (noting that there will be “instances where, although the plaintiff
has established a prima facie case and set forth sufficient evidence to reject the defendant’s
explanation, no rational factfinder could conclude that the action was discriminatory”).
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about that.”19
These statements also fail to create a fact issue regarding the reason for Dr. Patel’s
suspension. Specifically, Dr. Patel has not shown that these statements are more than “stray
remarks.” See Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 222-25 (5th Cir. 2001) (applying stray
remarks doctrine where evidence of pretext was weak). We recently explained the stray remarks
doctrine in Rubinstein v. Adm’rs of the Tulane Educ. Fund:
[I]n order for comments in the workplace to provide sufficient evidence of
discrimination, they must be “1) related [to the protected class of persons of which
the plaintiff is a member]; 2) proximate in time to the [complained-of adverse
employment decision]; 3) made by an individual with authority over the employment
decision at issue; and 4) related to the employment decision at issue.”
218 F.3d 392, 400-01 (5th Cir. 2000) (quoting Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5th
Cir.1996)). The comments cited by Dr. Patel fail to meet these criteria for several reasons.
First, we note that Dr. Miller’s alleged statements were made two or more years before Dr.
Patel was suspended. Although they are directed at Dr. Patel’s Indian descent, they do not relate to
any plans to investigate his practice or suspend his privileges. See Brown, 82 F.3d at 655-56
(“Comments that are vague and remote in time are insufficient to establish discrimination.” (internal
quotations and citations omitted)). Moreover, Dr. Miller had no authority over the decision to
suspend Dr. Patel. See Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir. 1996) (“To be
probative, allegedly discriminatory statements must be made by the relevant decision maker.”). Dr.
19
In its opinion, the district court noted that Dr. Patel alleged in his First Amended Complaint
that Dr. Mendez made the following statement at the time of his suspension: “you foreign doctors are
required to dot every i and cross every t, unlike nonforeign doctors.” See Amended Order at 11. Dr.
Patel does not mention this alleged statement in either of his briefs on appeal, or in any of his
responses to the Defendants’ summary judgment motion. Nor can we find any testimony supporting
this allegation in any of the affidavits submitted by Dr. Patel. As a result, we must credit Dr.
Mendez’s undisputed affidavit denying that he made this comment.
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Miller’s role in Dr. Patel’s suspension was limited to the report he drafted on behalf of Dr. Brown
and the Cardiovascular Co mmittee, which recommended outside review of Dr. Patel’s cases. Dr.
Miller was not a member of the MEC—the body that voted to suspend Dr. Patel—nor was he a
member of the MCC—the body that recommended suspension. Finally, the statements made by the
unidentified speaker and the administrator cannot support an inference of discrimination. They do
not appear to be related to Dr. Patel’s suspension, nor can they be linked to an individual with
authority over Dr. Patel’s suspension.20
Because Dr. Patel has failed to present sufficient evidence of pretext from which a rational
factfinder could infer racial discrimination, the district court properly granted summary judgment to
the Defendants on this issue.21
20
We note that, in addit ion to failing to establish pretext, Dr. Patel has failed to present
sufficient evidence from which a rational factfinder could conclude that Midland had a custom or
policy of racial discrimination. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978) (holding
that a municipality can only be found liable under section 1983 where “the action that is alleged to
be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body’s officers”); Gros v. City of Grand Prairie, 181 F.3d
613, 615 (5th Cir. 1999) (“Liability arises only when the execution of an official policy or custom of
the municipality causes the constitutional injury.”). In his brief on appeal, Dr. Patel concedes that
Midland has no policy of racial discrimination. He argues instead that the fact that Dr. Miller and
other hospital staff felt free to make racially derogatory comments creates a fact issue as to whether
the hospital had a custom of discrimination. We disagree. First, as noted above, there is no evidence
that Midland was aware of any of the comments cited by Dr. Patel. Second, the undisputed evidence
in the record defies any alleged custom of racial discrimination against Indians. At the time of his
suspension, 59 of Midland’s 329 physicians were of Indian descent, and roughly one hundred doctors
had foreign degrees. Physicians of Indian descent have also served on hospital committees and in
positions of authority. For example, Dr. Prem Gupta, a member of the MCC who voted in favor of
suspending Dr. Patel’s privileges, is of Indian descent. The current Chief of Staff and Chairman of
the MEC, Dr. Raj Reddy, is also of Indian descent.
21
Because Dr. Patel has presented insufficient evidence of discrimination to survive summary
judgment, we need not address the individual defenses raised by Midland and the doctors based on
lack of causation and immunity.
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V
Dr. Patel next argues that the district court erred in granting summary judgment to the
Defendants on his federal and state antitrust cl aims. See 15 U.S.C. §§ 1 & 2; TEX. BUS. & COM.
CODE ANN. § 15.05. Specifically, he argues that his suspension was the product of a conspiracy to
monopolize the Midland market for the “performance of interventional and invasive cardiology
services.”22 According to Dr. Patel, the Defendants suspended him so that they could succeed to his
market share and block the further expansion of his practice—including the opening of a new hospital
to compete with Midland. Dr. Patel contends that the Defendants’ actions caused injuries redressable
by the antitrust laws because they essentially removed him from the market for eleven months, led
to higher costs and fewer options for consumers, and delayed his plans to open a competing hospital.
To support his antitrust claim, Dr. Patel cites the same pattern of competition that he relied
on in connection with his discrimination claim. See infra note 17 and accompanying text. According
to Dr. Patel, after the Defendants’ previous attempts to block the expansion of his practice failed, they
resorted t o directly attacking his clinical privileges. In addition to past examples of aggressive
competition, Dr. Patel once again argues that the fact that he was not a danger further illustrates that
his suspension was a “sham” undertaken to destroy his reputation and practice. Finally, Dr. Patel
notes that at least some of his reviewers—specifically, Drs. Brown and Miller, both members of the
Permian Cardiology Gro up—were cardiologists at Midland who directly competed with his
22
According to Dr. Patel, the relevant geographic market in this case is Midland, and the
relevant product market is the “performance of interventional and invasive cardiology services.” Dr.
Patel avers that at the time his practice came under scrutiny in 1997, he (and the plaintiff-associations
in which he has an interest) performed at least fifty percent of these services in Midland. Drs. Brown
and Miller, both part of the Permian Cardiology Group at Midland, performed thirty-five to forty
percent of these services. For purposes of this appeal, we assume arguendo that these averments are
correct.
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cardiology practice.
The district court properly granted summary judgment to the Defendants on Dr. Patel’s
antitrust claims for three reasons. First, Dr. Patel has failed to present sufficient evidence from which
a rational factfinder could conclude that he was suspended for anticompetitive reasons. To begin,
the mere fact that Dr. Patel and Midland competed in the past does not itself support a finding that
his suspension was a sham. This is particularly true where, as here, the record supports the hospital’s
reasonable belief that Dr. Patel was a danger to patients at the time of his suspension.23 Moreover,
Dr. Patel’s complaint that his direct competitors participated in his investigation is of little
consequence here. It is inevitable in any peer review process that a physician’s competitors will at
some point be involved in the process. As Dr. Patel himself implicitly concedes, only specialists from
the same field can fairly assess a physician’s cases.24 Finally, we note that the Defendants here took
several steps to ensure that the quality of its peer review process was not tainted by competitive bias.
Drs. Miller and Brown, though critical of Dr. Patel’s cases, both recommended outside review before
taking action against Dr. Patel. The hospital followed these recommendations and sought an outside
review by Dr. Lange. In addition, Midland’s procedures provided for review by doctors of various
disciplines within the hospital. Furthermore, Dr. Patel’s competitors did not control the ultimate
23
We also note the lack o f evidence connecting this alleged “pattern” of anticompetitive
behavior with the individual defendants in this case. At best, the evidence presented by Dr. Patel
suggests that Dr. Rubin, who did not participate in the vote to suspend Dr. Patel, had some degree
of involvement in Midland’s competing ventures.
24
One of Dr. Patel’s key criticism of his reviewers is that they did not have sufficient expertise
in invasive and interventional cardiology to fairly review his cases.
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decision to suspend his privileges.25
Second, Dr. Patel’s antitrust claims fail as a matter of law because he has not alleged a
cognizable antitrust injury. See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489
(1977) (“Plaintiffs must prove antitrust injury, which is to say injury of the type the antitrust laws
were intended to prevent and that flows from that which makes defendants’ acts unlawful.”). Dr.
Patel’s suspension did not eliminate him as a competitor. He still continued to treat many of his
patients at another facility during the time of his suspension.26 Moreover, his suspension did not
permanently block his plans to open a new hospital, but at best delayed them.
Third, the Local Government Antitrust Act of 1984 (LGAA), and its Texas counterpart, bar
Dr. Patel from recovering antitrust damages from Midland and its doctors acting in their official
capacities. See 15 U.S.C. §§ 34-36 (2000); TEX. BUS. & COM. CODE ANN. § 15.05(g) (Vernon Supp.
2001). The LGAA provides, in relevant part:
No damages, interest on damages, costs or attorney’s fees may be recovered [for
violations of antitrust laws] in any claim against a person based on any official action
directed by a local government, or official or employee thereof acting in an official
capacity.
15 U.S.C. § 36(a). Because it is undisputed that Midland is a political subdivision of the State of
Texas, and that the doctors in this suit were acting as agents of the hospital when investigating Dr.
25
Dr. Patel does not allege that any of the five members of the MCC who recommended
suspension, or any of the eleven members of the MEC who voted to suspend him, were direct
competitors. He simply makes broad accusations that, because of the hospital’s history of competing
with his new ventures, we should presume his suspension was the result of anticompetitive motives.
26
Dr. Patel continued to treat several of his patients at Odessa Medical Center.
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Patel’s cases, they are immune from antitrust liability.27
VI
Lastly, Dr. Patel argues that the district court erred when it granted summary judgment to the
Defendants on his three state law claims—breach of contract, tortious interference with contract
relations, and defamation. We disagree.
First, Dr. Patel argues that Midland’s bylaws constituted a contract between Midland and its
doctors that was breached when he was suspended without first being afforded process. Specifically,
Dr. Patel argues that, because he was not actually a danger, Midland’s bylaws required that he be
afforded notice and a hearing prior to the deprivation of his privileges. Even assuming the existence
of a contract in this case, summary judgment was still proper on this claim because Midland’s bylaws
were not violated. Although Dr. Patel is correct that Midland’s bylaws generally provide for notice
and an opportunity to be heard prior to the deprivation of privileges, that is not the case where, as
here, patient safety is deemed to be at risk. Midland’s bylaws specifically authorize summary
suspension “whenever a practitioner’s conduct requires that immediate action be taken to prevent
immediate danger to . . . patients.”
Second, Dr. Patel claims in vague terms that the Defendants defamed him by disseminating
“false and defamatory per se publications to third parties.” Specifically, he argues that these
publications falsely stated that the summary suspension was justified to protect patient safety.
Because we have already concluded that the MEC had reasonable grounds for concluding that Dr.
Patel was a danger and thus that his summary suspension was justified under the circumstances,
27
Because we have already concluded that summary judgment was proper on these claims, we
do not need to reach the Defendants remaining defenses based on sovereign immunity and the state-
action doctrine.
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summary judgment was proper on this claim.28 TEX. CIV. PRAC. & REM. CODE ANN. § 73.005
(Vernon 2001) (“The truth of the statement in the publication on which an action for libel is based
is a defense to the action.”).
Third, Dr. Patel claims that the Defendants, by illegally suspending him, interfered with his
business and contractual relations with the hospital, as well as with his business relationships with
other physicians, patients, and insurance carriers. This claim also fails. To begin, we have already
determined that Dr. Patel’s suspension was not illegal. Moreover, we note that it is undisputed that
Midland, through its agent s, had a duty to engage in peer review of its physicians. Thus, as the
district court correctly concluded, any contractual interference caused by Midland’s exercise of this
right with respect to Dr. Patel was justified. See Friendswood Dev. Co. v. McDade & Co., 926
S.W.2d 280, 282 (Tex. 1996) (“A party is justified in interfering with another’s contract if it exercises
(1) its own legal rights or (2) a go od faith claim to a colorable legal right, even though that claim
ultimately proves to be mistaken.”).
VII
Finally, we note the Defendants’ contention that they are immune to all of Dr. Patel’s claims,
except for his civil rights claims, under the Health Care Quality Improvement Act and the Texas Peer
Review statutes. See HCQIA, 42 U.S.C. §§ 11101-11152 (providing immunity from damages to any
person participating in a professional review action when the proceeding meets certain statutory
28
In his response to Defendants’ summary judgment motion, Dr. Patel asserted for the first
time a claim for libel based on an “adverse action report” sent to the National Practitioner Data Bank
stating that his noncardiac peripheral privileges had been “revoked” when they had only been
suspended. Even if this claim was properly considered by the district court, Dr. Patel does not renew
this claim in his brief on appeal. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (“A party
who inadequately briefs an issue is considered to have abandoned the claim.”).
-22-
requirements); Texas Medical Practice Act, TEX. OCC. CODE ANN. § 160.010(1) (Vernon 2001);
TEX. HEALTH & SAFETY CODE ANN. § 161.033 (Vernon 2001) (providing immunity to members and
agents of medical peer review committees absent a showing of malice). In addition, the Defendants
argue that both the federal and the state statutes entitle them to attorneys’ fees.29
Because we agree with the district court’s resolution of Dr. Patel’s claims on the merits, we
need not reach the issue of whether the HCQIA or the Texas Peer Review statutes immunize the
Defendants in this case. As for the question of whether attorneys’ fees should be awarded to
Defendants, we remand this case to the district court for consideration of this issue.
VIII
For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment to the
Defendants on all of Dr. Patel’s claims. We REMAND this case to the district court for a
determination of their entitlement to attorneys’ fees and defense costs under the HCQIA, 42 U.S.C.
§ 11113, and the Texas Peer Review statutes, TEX. OCC. CODE ANN. § 160.008(c).
29
Under HCQIA, a defendant who meets the standards for immunity under the statute and
substantially prevails shall be awarded costs, including reasonable attorneys’ fees, “if the claim, or the
claimant’s conduct during the litigation of the claim, was frivolous, unreasonable, without foundation,
or in bad faith.” 42 U.S.C. § 11113. Under Texas’s Peer Review statutes, a defendant may recover
costs and attorneys’ fees, if the plaintiff’s suit was frivolous or brought in bad faith. TEX. OCC. CODE
ANN. § 160.008(c) (Vernon 2001).
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