WOOD v. ARCHBOLD MEDICAL CENTER, INC. (M.D.Ga. 9-13-2010)

e professional review action was taken "after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances." 42 U.S.C. § 11112(a)(3). Section 11112(b) provides a list of procedures that, if followed, constitute a "safe harbor" under which the requirements of § 11112(a)(3) are deemed to be met:

(b) Adequate notice and hearing

A health care entity is deemed to have met the adequate notice and hearing requirement of subsection (a)(3) of this section with respect to a physician if the following conditions are met (or are waived voluntarily by the physician):

(1) Notice of proposed action

The physician has been given notice stating —

(A)(i) that the professional review action has been proposed to be taken against the physician;

(ii) reasons for the proposed action;

(B)(i) that the physician has the right to request a hearing on the proposed action,

(ii) any time limit (of not less than 30 days) within which to request such a hearing, and

(C) a summary of the rights in the hearing under paragraph (3).

(2) Notice of hearing

If a hearing is requested on a timely basis under paragraph (1)(B), the physician involved must be given notice stating —

(A) the place, time, and date, of the hearing, which date shall not be less than 30 days after the date of the notice, and

(B) a list of the witnesses (if any) expected to testify at the hearing on behalf of the professional review body.

(3) Conduct of hearing and notice

If a hearing is requested on a timely basis under paragraph (1)(B) —

(A) subject to subparagraph (B), the hearing shall be held (as determined by the health care entity) —

(i) before an arbitrator mutually acceptable to the physician and the health care entity,

(ii) before a hearing officer who is appointed by the entity and who is not in direct economic competition with the physician involved, or

(iii) before a panel of individuals who are appointed by the entity and are not in direct economic competition with the physician involved;

(B) the right to the hearing may be forfeited if the physician fails, without good cause, to appear:

(C) in the hearing the physician involved has the right —

(i) to representation by an attorney or other person of the physician's choice,

(ii) to have a record made of the proceedings, copies of which may be obtained by the physician upon payment of any reasonable charges associated with the preparation thereof,

(iii) to call, examine, and cross-examine witnesses,

(iv) to present evidence determined to be relevant by the hearing officer, regardless of its admissibility in a court of law, and

(v) to submit a written statement at the close of the hearing; and

(D) upon completion of the hearing, the physician involved has the right —

(i) to receive the written recommendation of the arbitrator, officer, or panel, including a statement of the basis for the recommendations, and

(ii) to receive a written decision of the health care entity, including a statement of the basis for the decision.

42 U.S.C. § 11112(b).

A professional review body's failure to meet these conditions does not, in itself, constitute failure to meet the standards of § 11112(a)(3). 42 U.S.C. § 11112(b).

A review of the record shows that Defendants met the safe harbor provisions of § 11112(b). In a letter dated September 24, 2004, Plaintiff was given notice that a professional review action had been proposed to be taken against him, the reasons for the proposed action, that he had the right to request a hearing, that he had 30 days within which to request a hearing, and that his rights with regard to the hearing were set forth in the Hospital's Hearing and Appeal Procedure, which was enclosed in the letter. (Doc. 463-94, p. 44). 42 U.S.C. § 11112(b)(1). In a letter dated December 10, 2004, the Hospital provided Plaintiff with the place, time, and date of the hearing, which was not less than 30 days after the date of the notice, and also provided a list of the Hospital's witnesses expected to testify at the hearing. (Doc. 463-95, pp. 5-6). 42 U.S.C. § 11112(b)(2). The 2005 Appeal Hearing was held before a panel of physicians who were not in direct economic competition with Plaintiff, as it is undisputed that none of the 2005 Appeal Hearing Panel members were nephrologists. 42 U.S.C. § 11112(b)(3)(A). At the 2005 Appeal Hearing, Plaintiff was represented by counsel, had a record of the proceedings made, was allowed to call, examine, and cross-examine witnesses, was allowed to present evidence, and was allowed to submit a written statement at the close of the hearing. 42 U.S.C. § 11112(b)(3)(C). In a letter dated March 17, 2005, Plaintiff was provided the recommendation of the 2005 Appeal Hearing Panel and the basis for its decision. (Doc. 463-113). In a letter dated July 27, 2005, Plaintiff was provided with the Board's decision to terminate his privileges, along with the basis for the decision. (Doc. 463-116). 42 U.S.C. § 11112(b)(3)(D).

Plaintiff argues that adequate notice and hearing procedures were not afforded because he was led to believe the 2004-2005 Action only involved Patient AB and only learned that other patients were involved when he received the 2004 Study Group's report; because he was not informed prior to the 2005 Appeal Hearing that the medical record from Patient AB's chart was missing; because some of the physicians who reviewed his conduct had financial ties to the Hospital; and because some witnesses and potential witnesses were afraid to testify on Plaintiff's behalf during the 2005 Appeal Hearing and the Hospital refused to allow Plaintiff to subpoena witnesses.

Each of Plaintiff's arguments fails. First, Plaintiff was only entitled to adequate notice of the proposed professional review action, which was the termination of his privileges. He was given that notice. Whether he was told prior to the commencement of the 2004 Study Group's investigation that the investigation involved only Patient AB, which is disputed, is irrelevant, especially as he was told prior to appearing before both the MEC and the 2005 Appeal Hearing Panel all of the allegations relating to the various patients. Second, the issue of the missing medical record was fully addressed during the 2005 Appeal Hearing. Ms. Bush testified as to the contents of the record, and the 2005 Appeal Hearing Panel had ample opportunity to consider the record and the fact that it was not in Patient AB's chart prior to making its decision. Third, HCQIA only requires that the members of the hearing panel not be in direct economic competition with the physician. None of the members of the 2005 Appeal Hearing Panel were nephrologists and Plaintiff did not object to their serving on the hearing panel. In any event, at least one circuit court has held that the fact that members of a peer review committee were in direct competition with the physician was insufficient to rebut the presumption that the peer review process was fair under the circumstances. See Wayne v. Genesis Med. Ctr., 140 F.3d 1145, 1149 (8th Cir. 1998). Also, while some of the physicians who served on the peer review committees served on Hospital panels for which they were paid or had companies that leased office space from the Hospital, Plaintiff has not shown that all of the people involved in the peer review action had alleged financial ties to the Hospital, or how those financial ties served to make the process unreasonable. Finally, Plaintiff's argument with regard to the subpoenas is frivolous. As the Court stated during oral argument, neither the Hospital nor Plaintiff has any

Even if the Hospital's concerns shifted during the review process, that "does not alone undermine the fairness of the procedures employed." Sugarbaker, 190 F.3d at 915. See also Ne. Ga. Med. Ctr., Inc. v. Davenport, 272 Ga. 173, 176, 527 S.E.3d 548, 552 (2000).
Further, nothing in HCQIA even "requires that a physician be permitted to participate in the review of his care." Singh v. Blue Cross/Blue Shield of Mass., Inc., 308 F.3d 25, 40 (1st Cir. 2002) (citation omitted).

See also S. Fulton Med. Ctr. v. Prakash, 237 Ga. App. 396, 399, 514 S.E.2d 233, 236 (1999). The physician plaintiff contended that certain doctors on the initial investigative committee were in economic competition with him. The Court of Appeals found that fact to be insufficient to rebut the presumption of fairness, as HCQIA only prohibits physicians in direct economic competition from serving as hearing officers or on a hearing panel.

inherent subpoena power. A subpoena issued by either the Hospital or Plaintiff would have been meaningless as neither has any power to compel attendance. In any event, the Hospital offered to write a letter to any Hospital employee Plaintiff wanted to call during the 2005 Appeal Hearing stating that the employee could testify without fear of retribution. Plaintiff rejected that offer, so any negative impact was of his own making. Also, when Plaintiff was asked at the 2005 Appeal Hearing if he had the right to call witnesses, he responded yes and could not specifically name anyone he wanted to testify that did not appear.

The Court finds that Plaintiff has failed to rebut by a preponderance of the evidence the presumption that the notice and hearing procedures afforded to him in connection with the 2004-2005 Action were fair under the circumstances.

Hussein v. Duncan Reg'l Hosp., Inc., No. CIV-07-0439-F, 2009 WL 1212278 (W.D. Okla. May 1, 2009), and Chudacoff v. Univ. Med. Ctr. of Southern Nevada, 609 F.Supp.2d 1163 (D. Nev. 2009), cases relied on by Plaintiff where the district courts determined the defendants were not entitled to HCQIA immunity, can easily be distinguished. In both cases, the physician was not given any notice or opportunity to be heard prior to the hospital terminating his privileges and reporting the termination to the Data Bank. That is not the situation before the Court here.

iv. Reasonable belief that the action was warranted by the facts known

The fourth and final prong of the HCQIA immunity test requires that a professional review action be taken in the "reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the [notice and hearing] requirement of paragraph (3)." 42 U.S.C. § 11112(a)(4). This analysis closely tracks the analysis under § 11112(a)(1).Poliner, 537 F.3d at 384.

Plaintiff relies on his previously made arguments in support of his contention that Defendants' conduct was not warranted by the facts. The Court has already rejected those arguments. As discussed supra, Defendants reasonably believed the termination of Plaintiff's privileges was necessary to further quality health care. Defendants satisfied the conditions for adequate notice and hearing, and they made a reasonable effort to obtain the facts of the matter. The Court finds that a reasonable jury could not conclude by a preponderance of the evidence that Defendants' actions fell outside the requirement established in 42 U.S.C. § 11112(a)(4).

v. Conclusion for 2004-2005 Action

"[T]he role of federal courts on review of [peer review] actions is not to substitute our judgment for that of the hospital's governing board or to reweigh the evidence regarding the . . . termination of medical staff privileges." Bryan, 33 F.2d at 1337 (internal quotation omitted). "The intent of [HCQIA] was not to disturb, but to reinforce, the preexisting reluctance of courts to substitute their judgment on the merits for that of health care professionals and of the governing bodies of hospitals in an area within their expertise." Id. (internal citation and quotations omitted).

For all the reasons previously discussed, Plaintiff has not shown that the 2004-2005 Action was unreasonable. The Hospital Defendants, Peer Review Defendants, Defendant Simms, and Defendant Beverly are entitled to immunity under HCQIA on all of Plaintiff's claims for money damages relating to the 2004-2005 Action, including his claims under the Sherman and Clayton Acts (Counts I, II, III, IV, VI), his claim for tortious interference with business relations and prospective business relations (Count VII), his claim for tortious interference with employment, trade, or profession (Count VIII), his claim for tortious interference with business relations or employment (Count IX), his claim for failure to adhere to bylaws (Count X), his claim for intentional infliction of emotional distress (Count XI), his claim for punitive damages (Count XII), and his claim for bad faith damages (Count XIII).

It is undisputed that Defendant Simms was only involved in the 2004-2005 Action, and therefore will not be discussed in connection with the 2001 Action or 1998 Evaluation.

2. 2001 Action

The Court will next address the 2001 peer review process, where Plaintiff voluntarily relinquished his privileges, but was ultimately reinstated to the medical staff (the "2001 Action").

Plaintiff only objects to the actions of the 2001 Study Group, which recommended to the MEC that Plaintiff had breached the April 17, 2001 Agreement, and the MEC, who decided Plaintiff had in fact breached the Agreement and accepted his voluntary resignation. It is not necessary for the Court to address in detail the 2001 Appeal Hearing, which ended in a favorable decision for Plaintiff.

Before addressing the four prongs of the HCQIA test, the Court must address Plaintiff's argument that Defendants should be estopped from claiming immunity for the 2001 Action because the voluntary resignation was not reported to the BOMEX or the Data Bank.

Under HCQIA, a hospital must report to the BOMEX whenever it "takes a professional review action that adversely affects the clinical privileges of a physician for a period longer than 30 days." 42 U.S.C. § 11133(a)(1)(A). The record shows that Plaintiff was off staff for a period of seven months following his voluntary resignation, and it is undisputed that the Hospital did not report anything to the BOMEX. Nevertheless, the Court finds that HCQIA immunity is not defeated for the 2001 Action.

42 U.S.C. § 11111(b) provides:

If the Secretary [of the Department of Health and Human Services] has reason to believe that a health care entity has failed to report information in accordance with section 11133(a) of this title, the Secretary shall conduct an investigation. If, after providing notice of noncompliance, an opportunity to correct the noncompliance, and an opportunity for a hearing, the Secretary determines that a health care entity has failed substantially to report information in accordance with section 11133(a) of this title, the Secretary shall publish the name of the entity in the Federal Register. The protections of subsection (a)(1) of this section shall not apply to an entity the name of which is published in the Federal Register under the previous sentence with respect to professional review actions of the entity commenced during the 3-year period beginning 30 days after the date of publication of the name.

Here, there is no evidence in the record that the Secretary made a charge that the Hospital failed to report as required by 42 U.S.C. § 11133. Further, there is no evidence that the Secretary conducted the investigation required by § 11111(b), or that the Hospital's name was ever published in the Federal Register pursuant to an adverse finding under § 11111(b). It is only if those conditions are met that HCQIA immunity is waived. Plaintiff's argument on this point is rejected. See Imperial, 37 F.3d at 1030.

Plaintiff also argues that HCQIA immunity is waived because the Hospital took the position that the voluntary resignation was not a reportable event. However, Plaintiff "has not shown that this gives rise to an estoppel, particularly given that the statute contemplates that hospitals will sometimes fail to report and provides a specific remedy for such failures." Fox v. Good Samaritan, L.P., No. C 04-0874, 2010 WL 1260203 at *7 (N.D.Cal. March 29, 2010).

i. Reasonable belief that action was in furtherance of quality health care

The Court first considers whether the action to accept Plaintiff's voluntary termination was taken "in the reasonable belief that the action was in the furtherance of quality health care." 42 U.S.C. § 11112(a)(1). The question is whether "the reviewers, with the information available to them at the time of the professional review action, would reasonably have concluded that their action would restrict incompetent behavior or would protect patients." Bryan, 33 F.3d at 1334-35 (citations omitted). It is again noted that "[t]he test is an objective one, so bad faith is immaterial." Bryan, 33 F.3d at 1335 (citing Austin v. McNamara, 979 F.3d 728, 734 (9th Cir. 1992)).

Plaintiff argues that the 2001 Action was not taken in the reasonable belief that the action was in the furtherance of quality health care because the action was not reported to the BOMEX or the Data Bank, and because of Dr. Patterson's testimony that she questioned whether the MEC's decision to accept Plaintiff's voluntary resignation was about patient care.

The Court rejects Plaintiff's arguments. Perhaps the action should have been reported to the BOMEX or Data Bank, but in the Court's opinion, failure to do so does not mean the Defendants were not acting in the reasonable belief that the action was in the furtherance of quality health care. And with regard to Dr. Patterson, while she may have personally had questions about the true purpose of the 2001 Action, Plaintiff has not presented any evidence that any member of any panel or committee that voted as part of the 2001 Action did not believe their decisions were made with furthering quality health care in mind. In any event, Dr. Patterson testified that she believed the problem had to do with behavioral conflicts and the law is clear that "quality health care" is not limited to "clinical competence, but includes matters of general behavior and ethical conduct." Meyers, 341 F.3d at 469.

The record shows that the 2001 Action was taken in the reasonable belief that the action was in the furtherance of quality health care. Prior to recommending that Plaintiff be required to sign the April 17, 2001 Agreement, the 2001 Study Group and MEC had before it reports of Plaintiff's negative comments to the nursing staff, his failure to follow policies of the dialysis unit, concerns about patient care, and his recurring failure to attend required meetings. The 2001 Study Group, which again, had none of the individual Defendants on it, also had Plaintiff's statement that basically he was not concerned about the policies relating to meetings or medical records. Further, prior to making their recommendations that Plaintiff's voluntary resignation should be accepted, the 2001 Study Group and MEC both had additional information before them about quality of care issues (Plaintiff positioned a patient's catheter improperly and ordered staff the dialyze a patient who was too unstable), about Plaintiff's rude and abusive behavior toward the nursing staff, and about Plaintiff's failure to follow the rules of the dialysis unit.

It is Plaintiff's burden to show by a preponderance of the evidence that the 2001 Action was not taken in the reasonable belief that the action was in the furtherance of quality health care. He has not done so here.

ii. Reasonable effort to obtain the facts

The next question is whether the peer reviewers made "a reasonable effort to obtain the facts of the matter." 42 U.S.C. § 11112(a)(2).

Plaintiff argues that there was no reasonable effort to obtain the facts because the 2001 Study Group relied on statements from Defendants Hicks and Santos, who are Plaintiff's competitors. Plaintiff acknowledges that Ms. Edwards also appeared before the 2001 Study Group, but states that her appearance was at the behest of Defendants Hicks and Santos.

First, the Court notes that Plaintiff has not pointed to any evidence to support his contention that Ms. Edwards' appearance was at the "behest" of anyone or that there was some reason why her statements to the 2001 Study Group with regard to Plaintiff should have been disregarded or would not carry any weight. In fact, she was the person who discussed what the Court believes to be the most concerning issues — the improperly placed catheter and the order to continue dialyzing a patient who was too unstable.

And while it may not be ideal that it was Defendants Hicks and Santos who appeared before the 2001 Study Group, consideration of their statements does not mean that the 2001 Study Group or MEC did not make reasonable efforts to obtain the facts of the matter. The evidence in the record shows that the committees also relied on Ms. Edwards' oral and written statements, written statements from other staff members, the fact that Plaintiff failed to attend a number of departmental meetings, information from Dr. Earley, and Plaintiff's own statements in making their decisions.

While Plaintiff complains that his direct competitors participated in his investigation, the complaint "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." Patel v. Midland Mem. Hosp. Med. Ctr., 298 F.3d 333, 345 (5th Cir. 2002). In any event, except for sitting on a hearing panel, a physician's competitors are not prohibited under HCQIA from participating in an investigation. Even though Defendants Hicks and Santos may have discussed Plaintiff before the PWBC and 2001 Study Group, it is undisputed that no members of the PWBC, the 2001 Study Group, or the MEC were in direct economic competition with Plaintiff.

The Court finds that no reasonable jury could conclude that a reasonable effort to obtain the facts was not made before the 2001 Study Group and MEC voted to accept Plaintiff's voluntary resignation.

iii. Adequate notice and hearing procedures

The next question is whether Plaintiff was afforded adequate notice and hearing procedures or other procedures as are fair to the physician under the circumstances. 42 U.S.C. § 11112(a)(3).

There is no dispute that Plaintiff was not given notice or a hearing before the MEC decided to accept his voluntary resignation. However, HCQIA does not require a hearing, and further, no hearing or notice was required here. Plaintiff signed an agreement which stated that failure to comply with the terms would yield "immediate, voluntary termination of my medical staff privileges. . . ." No notice or hearing was provided for under the April 17, 2001 Agreement. A similar situation was addressed in Singh v. Blue Cross Blue Shield of Mass., Inc., 182 F.Supp.2d 164, 173 (D.Mass. 2001), where the Court held that no hearing was required under HCQIA in light of the agreement the plaintiff signed which did not provide for a formal hearing. In any event, Plaintiff was later given a hearing where he was afforded all of the provisions under 42 U.S.C. § 11112(b), including representation by counsel, maintenance of a hearing record, the right to call, examine, and cross-examine witnesses, the ability to present evidence, and the submission of a written statement at the conclusion of the hearing.

The Court finds that Plaintiff was provided with fair notice and hearing procedures relating to the 2001 Action.

iv. Reasonable belief that the action was warranted by the facts known

Finally, the Court must decide if the 2001 Action was taken in the "reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the [notice and hearing] requirement of paragraph (3)." 42 U.S.C. § 11112(a)(4).

As the Court has determined that the 2001 Action was done in the furtherance of quality health care, and that Plaintiff received adequate notice and hearing procedures, it finds that a reasonable jury could not conclude by a preponderance of the evidence that Defendants' actions fell outside the requirement established in 42 U.S.C. § 11112(a)(4).

v. Conclusion for 2001 Action

For all the reasons discussed above, Plaintiff has not shown that the 2001 Action was unreasonable. To the extent they are implicated in the 2001 Action, the Hospital Defendants, Peer Review Defendants, and Defendant Beverly are entitled to immunity under HCQIA on all of Plaintiff's claims for money damages relating to the 2001 Action, including his claims under the Sherman and Clayton Acts (Counts I, II, III, IV, and VI), his claim for tortious interference with business relations and prospective business relations (Count VII), his claim for tortious interference with employment, trade, or profession (Count VIII), his claim for tortious interference with business relations or employment (Count IX), his claim for failure to adhere to bylaws (Count X), his claim for intentional infliction of emotional distress (Count XI), his claim for punitive damages (Count XII), and his claim for bad faith damages (Count XIII).

3. 1998 Evaluation

For purposes of HCQIA, the Court lastly addresses the 1998 Evaluation.

A professional review action under HCQIA is an action or recommendation which is based on the competence or professional conduct of a physician and which affects or may affect adversely the clinical privileges of the physician. 42 U.S.C. § 11151(9). Professional review activities are the precursors to professional review actions, and include a health care entity's efforts: "(a) to determine whether the physician may have clinical privileges with respect to, or membership in, the entity; (b) to determine the scope or conditions of such privileges or membership; or (c) to change or modify such privileges or membership." 42 U.S.C. § 11151(10). When determining if a health care entity is immune from damages for a professional review action, the court considers whether the action as a whole, including all the professional review activities relating to it, meets the standards of § 11112(a).

The 1998 Evaluation was a professional review activity, not a professional review action, as it was the Hospital's effort to determine whether Plaintiff should have clinical privileges, or whether his privileges should be modified. The Washington Court of Appeals considered a similar situation in Morgan v. PeaceHealth, Inc., 101 Wash. App. 750, 14 P.3d 773 (2000). There, the hospital's credentials committee recommended to the executive committee that the physician obtain an evaluation within three months at his own cost at a certain facility. The executive committee agreed and forwarded the recommendation to the governing board, which approved the recommendation. The board extended the physician's time to complete the assessment, and warned that if he did not comply, his privileges would be automatically suspended. The physician's clinical privileges were eventually summarily suspended for failure to obtain the evaluation. Id. at 779-80. Plaintiff was similarly told here that if he did not have the evaluation, his privileges would be suspended.

The Morgan court determined that the recommendation for the evaluation was a professional review activity, because it was part of an assessment and fact-finding process and did not curtail the physician's privileges. The professional review action at issue was the suspension of the physician's privileges for failure to have the evaluation done. Id. at 782. Plaintiff attempts to distinguish Morgan by stating that there was no "recommendation" that Plaintiff undergo the evaluation. Instead, he was told to have the evaluation or his privileges would be immediately terminated. That is exactly what happened in Morgan, though the timing may have been somewhat different, as it was the governing board in Morgan, rather than a physicians' committee, who told the physician his privileges would be terminated if he did not have the evaluation.

As the 1998 Evaluation was a professional review activity, immunity under HCQIA does not depend on whether the actions surrounding the evaluation directive complied with HCQIA. The question is whether the professional review action — the decision of the Board to retain Plaintiff on staff in 1999 — meets the HCQIA requirements.

As discussed extensively supra, there is a presumption that a professional review action meets the standards set out in 42 U.S.C. § 11112(a), and that presumption must be rebutted by Plaintiff by a preponderance of the evidence. In the multitude of pages filed by Plaintiff with respect to his own Motions for Summary Judgment and in response to the various Defendants' Motions for Summary Judgment, Plaintiff has not attempted to rebut the HCQIA presumption with regard to the 1998 Evaluation. Surprisingly, he has not moved for summary judgment with regard to the 1998 Evaluation on the Defendants' affirmative defense that they are entitled to HCQIA immunity on all professional review actions and activities regarding Plaintiff. His only arguments are that the 1998 Evaluation was a professional review action, rather than a professional review activity, an argument with which the Court disagrees, and that the Hospital did not truly believe that a psychiatric evaluation was needed because Defendant Story did not mention it in a reappointment questionnaire for another hospital where Plaintiff was seeking reappointment. Even taking the questionnaire into consideration, Plaintiff has failed to rebut the presumption that HCQIA immunity applies to the decision to retain

Plaintiff on staff in 1999, a professional review action that included the professional review activity of the 1998 Evaluation.

i. Conclusion for 1998 Evaluation

Accordingly, to the extent they are implicated in the 1999 review action and 1998 Evaluation, the Hospital Defendants, Peer Review Defendants, and Defendant Beverly are entitled to immunity under HCQIA on all of Plaintiff's claims for money damages relating to the 1999 review action and 1998 Evaluation, including his claims under the Sherman and Clayton Acts (Counts I, II, III, IV, and VI), his claim for tortious interference with business relations and prospective business relations (Count VII), his claim for tortious interference with employment, trade, or profession (Count VIII), his claim for tortious interference with business relations or employment (Count IX), his claim for failure to adhere to bylaws (Count X), his claim for intentional infliction of emotional distress (Count XI), his claim for punitive damages (Count XII), and his claim for bad faith damages (Count XIII). C. Antitrust

For the claims against Defendants Hicks and Santos, who were not involved with the peer review actions, the normal summary judgment standard applies. Summary judgment must be granted if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue to any material facts and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The nonmoving party "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of a material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986) (internal quotation marks omitted). If the moving party meets this burden, the burden shifts to the nonmoving party to go beyond the pleadings and present specific evidence showing that there is a genuine issue of material fact, or that the nonmoving party is not entitled to judgment as a matter of law. Id. at 324-26. This evidence must consist of more than mere conclusory allegations. See Avrigan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.

Plaintiff alleges several claims for damages under Sections 1 and 2 of the Sherman Act and Section 4 of the Clayton Act against Defendants Hicks and Santos. Defendants Hicks and Santos contend that they are entitled to summary judgment because, among other things, Plaintiff has not properly shown an antitrust injury.

The antitrust laws were "enacted for the `protection of competition, not competitors.'" Todorov v. DCH Healthcare Auth., 921 F.2d 1438, 1450 (11th Cir. 1991) (quoting Brown Shoe Co. v. United States, 370 U.S. 294, 320, 82 S.Ct. 1502, 1521 (1962)). Antitrust standing is established by satisfying a two-pronged test. First, the plaintiff must demonstrate antitrust injury. Second, the plaintiff must be an efficient enforcer of the antitrust laws. Todorov, 921 F.2d at 1449 (11th Cir. 1991).

To the extent Plaintiff asserts his own lost income and profits as an antitrust injury, the claim fails because it describes an injury to an individual competitor, not an antitrust injury. Id. at 1453-54; Pool Water Prods. v. Olin Corp., 258 F.3d 1024, 1035 (9th Cir. 2001).

Aside from any personal lost income and profits, the antitrust injury Plaintiff relies on is an alleged reduction in the quality of care available in the relevant market following his termination from the medical staff. The problem, however, is that there is no credible evidence in the record to support that contention. It is uncontroverted that Plaintiff's economic expert, who conducted a quality-related analysis comparing the Hospital's dialysis facilities and the facilities at which Plaintiff is the medical director, only evaluated data from 2001-2005, and did not analyze any data for the time period after Plaintiff was removed from the medical staff. The situation before the Court is the same as that before the Seventh Circuit in Kochert v. Greater Lafayette Health Servs., 463 F.3d 710, 719 (2006):

With no evidence that prices, in the normal sense, have been affected by anticompetitive activity, Kochert (and her expert) relied exclusively on her evidence of diminished quality of care as proof of anticompetitive effect, in and of itself, and as proof of higher "quality adjusted" costs. But no reasonable jury, examining Kochert's evidence of diminished quality, could find it credible as proof of such diminution. Kochert has not introduced any evidence that would allow a jury to compare the quality of care prior to defendants' anticompetitive acts with the quality of care after these acts.

Similarly, Plaintiff (or his expert) has not produced any evidence that would allow the Court or a jury to compare the quality of care prior to his termination from the medical staff with the quality of care after. Plaintiff refers to the fact that the Hospital's dialysis facility has been subject to "focused reviews," while the facilities where he serves as medical director have not, but that one fact is not sufficient to show a difference in the quality of care, especially as Plaintiff has not shown that the number of reviews or severity of review have increased since his termination. It is Plaintiff's burden to show an antitrust injury, and he has not presented sufficient evidence to support his theory that there has been a reduction in the quality of medical care available in the relevant market since his termination from the medical staff.

Finally, Plaintiff contends that he has shown an antitrust injury because Defendants' actions have interfered with his patients' choice of physicians, as Plaintiff cannot treat them when they are patients at the Hospital. This alleged injury has been thoroughly rejected by the courts. As the Eleventh Circuit has held, a patient's inability to see a certain physician at a hospital when the patient asked for the physician "does not rise to the level of an actual detrimental effect on competition." Levine v. Central Fla. Med. Affiliates, Inc., 72 F.3d 1538, 1554 (11th Cir. 1996). See also Mahmud v. Kaufmann, 358 Fed. Appx. 229, 231 (2d Cir. 2009) (unreported) (patients' declarations that they would rather be treated by the plaintiff

were inadequate because they did not establish that the patients could not secure treatment from the plaintiff, only that they could not do so at a particular hospital).

To recover under the Sherman and Clayton Acts, Plaintiff must establish an antitrust injury. As he has not, all of his antitrust claims against Defendants Hicks and Santos fail. Defendants Hicks and Santos are entitled to summary judgment on all of Plaintiff's claims under the Sherman and Clayton Acts (Counts I, II, IV, and V).

Even if Plaintiff had shown an antitrust injury, it is doubtful Plaintiff would be considered an efficient enforcer of the antitrust laws. While not deciding the issue, the Court believes it is most likely that Plaintiff's patients or the government would be considered more efficient enforcers.

D. Tortious Interference

1. Interference with business relations and prospective business relations and interference with employment, trade, or profession

Plaintiff next alleges that Defendants Hicks and Santos tortiously interfered with his business relations and prospective business relations, and with his employment, trade, or profession. He contends Defendants Hicks and Santos (1) caused or induced patients and referring physicians to terminate their relationships with Plaintiff; (2) caused or induced potential patients and potential referring physicians not to enter a physician-patient relationship or a physician-referral relationship with Plaintiff; (3) caused the TPA Captive to terminate its relationship with Plaintiff; (4) interfered with his relationship with RCG as its medical director; and (5) caused Plaintiff to have future difficulty in obtaining privileges at other medical facilities and in obtaining malpractice insurance.

Under Georgia law, a claim for tortious interference with business relations requires a showing that the defendant: (1) acted improperly and without privilege; (2) acted purposely and with malice and the intent to injure; (3) induced a third party or parties not to enter into or continue a business relationship with the plaintiff; and (4) caused the plaintiff some financial injury. Vito v. Inman, 286 Ga. App. 646, 649, 649 S.E.2d 753, 757 (2007).

Plaintiff has produced no evidence that Defendants Hicks or Santos induced parties not to enter into or continue in a business relationship with Plaintiff. Plaintiff testified during his deposition that three patients were taken away by Defendants Hicks and Santos, but Plaintiff did not know any of their names at that time, and has not directed the Court to the names of any of the patients in response to the Motion for Summary Judgment before the Court. Plaintiff also has not shown how Defendants Hicks and Santos improperly induced any patients to leave Plaintiff's care. Patient A.J., the one patient Defendant Santos asked if she would be interested in getting another doctor since Plaintiff could not see her while she was hospitalized, declined Defendant Santos' offer and continues under Plaintiff's care. While Defendant Santos may have told patients they "should come over to the good side," meaning transfer their care to Defendants Hicks and Santos, it is up to Plaintiff to show that patients in fact were induced by Defendants Hicks and Santos and did transfer their care, causing Plaintiff damage. He has not done so. He also has not shown that any potential patients decided not to enter into a physician-patient relationship with Plaintiff as a result of actions taken by Defendants Hicks and Santos.

It appears Defendant Santos actually made that statement to a nurse, but for purposes of this Order, the Court will assume he made the statement to patients.

When asked if he ever received any direction from Defendants Hicks and Santos that he should try to convince Plaintiff's patients to come over to NCI, Dr. Qualheim testified that "our assurance to [Plaintiff] would be that we wouldn't be trying to solicit patients, and totally left it up to the patient's decision. And some of them would make that decision." Dr. Qualheim also testified that even while working for Plaintiff, he never saw anyone from NCI or the Hospital try to actively recruit patients from Plaintiff's practice. (Doc. 464-23).

Similarly, Plaintiff does not present any evidence that Defendants Hicks and Santos did anything to induce physicians from referring patients to Plaintiff. To support a tortious interference claim, Plaintiff must adduce evidence of improper action, which Georgia courts have defined "as constituting conduct wrongful in itself; thus, improper conduct means wrongful action that generally involved predatory tactics such as physical violence, fraud or misrepresentation, defamation, use of confidential information, abusive civil suits, and unwarranted criminal prosecutions." Fortson v. Brown, 302 Ga. App. 89, 92, 690 S.E.2d 239, 242 (2010) (quoting Kirkland v. Tamplin, 285 Ga. App. 241, 244, 645 S.E.2d 653, 656 (2007)). Here, there is no evidence of improper conduct on the part of Defendants Hicks and Santos as relates to referring or potential referring physicians.

As for TPA Captive, while Defendant Hicks was a TPA Captive shareholder, he was not a member of the underwriting committee that voted to terminate Plaintiff's malpractice coverage. There is no evidence Defendant Hicks had anything to do with the termination. And while Defendant Santos was on the underwriting committee, the testimony before the Court from William A. Thompson, M.D., president of the TPA Captive, is that Defendant Santos did not speak or vote on the matter:

Q: Sitting here today, do you remember who specifically of all the people that you named who were present at this October 21st meeting, who said what about Dr. Wood in connection with his TPA policy being renewed? A: Specifically, I know that Dr. Santos did not because, as a competitor, he was not allowed to speak, which is typical for all. So if someone is in your practice or if they're competitors of your practice, you have to refrain from discussion or vote. **** Q: But you don't recall him saying anything? A: I don't recall him saying anything, and I'm as sure as I can be that he did not because that's the rule. (Doc. 463-168, p. 11).

Defendant Santos has also filed an affidavit in which he states he does not recall participating in the discussions about Plaintiff's insurance or voting on whether to terminate Plaintiff's policy. (Doc. 464-25). Plaintiff apparently wants the Court to

assume that just because Defendant Santos served on the underwriting committee he must have had something to do with the termination. The evidence, however, does not support that position, and the Court declines to make that assumption.

Similarly, there is no evidence Defendants Hicks and Santos wrongfully interfered with Plaintiff's relationship with RCG as its medical director. In order to maintain a tortious interference claim, Plaintiff must show that Defendants Hicks and Santos induced RCG not to enter into or continue a business relationship with the plaintiff. The undisputed evidence is that Plaintiff served as medical director for the time period RCG owned the former SGDS facilities, and Fresenius kept Plaintiff in that position after purchasing the dialysis facilities from RCG, and Plaintiff serves in that capacity to this day. There was no business relationship between Plaintiff and RCG which ended because of the actions of Defendants Hicks and Santos. (Doc. 463-131).

Finally, there is no evidence that Defendants Hicks and Santos interfered with Plaintiff's ability to obtain privileges at other medical facilities or with his ability to obtain malpractice insurance. Plaintiff testified that he was able to acquire malpractice insurance before his TPA Captive policy expired, and has had coverage without interruption since that coverage expired. He was never denied liability insurance coverage by any other carrier, though he had to pay a higher premium. (Doc. 464-4, p. 13). Having to pay a higher premium, however, does not constitute tortious interference. With regard to Plaintiff's ability to obtain privileges at other hospitals, he testified that he has not made an application for privileges at any other hospitals. While Colquitt Regional Medical Center would not give Plaintiff an application for full permitting privileges after he requested one, there is nothing connecting that denial to any actions of Defendants Hicks and Santos. Plaintiff just assumes that Colquitt Regional's decision not to give him an application is linked to the alleged conspiracy, but admittedly has never discussed with anyone at Colquitt Regional whether the application denial was related to the termination of his privileges at the Hospital or his being reported to the Data Bank. (Doc. 464-4, pp. 24-26). Plaintiff has not shown any tortious interference on the part of Defendants Hicks and Santos with regard to obtaining privileges at another hospital. The sort of speculation advanced by Plaintiff is not sufficient to defeat summary judgment.

In his response to the Motion for Summary Judgment, Plaintiff contends that Defendants Hicks and Santos tortiously interfered with him because they were favored economically by the Hospital, because they failed to properly document their medical director activities, because they described themselves as "team players" to the Hospital administration, and because Defendant Hicks complained Plaintiff was not a "team player." Even assuming all that is true, those acts do not constitute tortious interference.

Defendants Hicks and Santos are entitled to summary judgment on Counts VII and VIII of Plaintiff's Second Amended Complaint.

To the extent Plaintiff's Count VIII tortious interference with employment claim is based on the fact that Plaintiff's privileges were terminated, Defendants Hicks and Santos cannot be held liable, as they at no time voted to terminate Plaintiff's privileges.

2. Interference with business relations or employment

Plaintiff also contends that Defendants Hicks and Santos induced Dr. Qualheim to terminate his business relationship or employment with Plaintiff.

"The elements of a claim for tortious interference with employment include the existence of an employment relationship, interference by one who is a stranger to the relationship, and resulting damage to the employment relationship. In addition, it must be shown that the alleged intermeddler acted maliciously and without privilege." Lee v. Gore, 221 Ga. App. 632, 634(1), 472 S.E.2d 164 (1996) (internal citations omitted).

It is undisputed that Dr. Qualheim left Plaintiff's practice to go work for NCI. The evidence is clear on that point. Apparently, however, Plaintiff wants the Court to assume that Defendants Hicks and Santos necessarily must have done something malicious and improper in order for Dr. Qualheim to leave Plaintiff to work for NCI. Under Georgia law, to show that a defendant in a tortious interference action has engaged in improper conduct, a plaintiff must show more than that the defendant persuaded a person to break a contract. Stefano Arts v. Sui, 301 Ga. App. 857, 862, 690 S.E.2d 197, 202 (2010). The Court has been directed to no evidence of a "solicitation with a purpose to harm or damage the employer, nor is there evidence [Defendants Hicks and Santos] actively induced, conspired with, or aided and abetted [Dr. Qualheim] to break his contract constituting tortious interference with [Dr. Qualheim's] employment contract." Purcell v. Joyner, 231 Ga. 85, 87, 200 S.E.2d 363, 366 (1973). Simply stating that there is a job available that pays a certain amount does not constitute tortious interference. Id.

As Plaintiff has not shown any improper inducement on the part of Defendants Hicks and Santos as to Dr. Qualheim, those Defendants are entitled to summary judgment on Count IX of Plaintiff's Second Amended Complaint.

The Court also notes that Plaintiff accepted a $100,000 buyout by NCI of Dr. Qualheim's non-competition agreement with Plaintiff so that there would be no restrictions on Dr. Qualheim's ability to go work for NCI. Thus, Plaintiff actually agreed to the termination of his employment and contractual relationship with Dr. Qualheim and was compensated for the termination.
Even though Plaintiff did not make this argument, to the extent Count IX as to the Hospital Defendants and Defendant Beverly is not governed by HCQIA because it does not relate to peer review proceedings, the Hospital Defendants and Defendant Beverly would be entitled to summary judgment on the merits of Plaintiff's claim for the same reasons Defendants Hicks and Santos are.

3. Pre-1998 Evaluation events

While Plaintiff has not necessarily alleged these events as a separate tortious interference claim, he argues in his brief, and counsel argued at oral argument, that the pre-1998 Evaluation actions, including the no re-hire policy, not allowing nurses to visit patients, the refusal to provide blood from the blood bank, the attempted recruitment of Dr. Woollen, the refusal to put Plaintiff's practice on the resource sheet, the refusal to assign any unassigned emergency room patients to Plaintiff, not installing a Telex machine, referring to Plaintiff as "the enemy," and cancelling the renal biopsy contract, were all forms of tortious interference by some of the Hospital Defendants, Physician Defendants, and Defendant Beverly.

Since these events were not related to a professional review action, HCQIA would not apply to them.

Under Georgia law, a tortious interference claim must be brought within four years after the right of action accrues. O.C.G.A. § 9-3-33. The Hospital Defendants, Physician Defendants, and Defendant Beverly argue that they are entitled to summary judgment on any tortious interference claim arising prior to July 13, 2001, which would encompass all of these pre-1998 Evaluation events. Plaintiff argues that under Georgia' continuing tort doctrine, the acts are not barred from consideration. The Court disagrees.

The parties agreed between themselves that the statutes of limitations would be tolled from July 13 to September 30, 2005, so the applicable date for statute of limitations purposes is July 13, 2001.

The continuing tort doctrine "applies where any negligent or tortious act is of continuing nature and produces injury in varying degrees over time," and provides that "the statute of limitations does not begin to run until such time as the continued tortious act producing injury is eliminated." Mears v. Gulfstream Aerospace Corp., 225 Ga. App. 636, 640, 484 S.E.2d 659 (1997). Georgia courts, however, have consistently held that in a continuing tort a cause of action accrues when a plaintiff discovers, or with reasonable diligence should have discovered, both the injury and the cause thereof. Waters v. Rosenbloom, 268 Ga. 482, 482, 490 S.E.2d 73 (1997). See also Coffee v. Gen. Motors Acceptance Corp., 30 F.Supp.2d 1376, 1382 (S.D.Ga. 1998); Harrison v. Beckham, 238 Ga. App. 199, 204, 518 S.E.2d 435, 439 (1999). Plaintiff did or should have discovered the pre-1998 Evaluation injuries no later than 1998. So, even assuming Plaintiff is entitled to use the continuing tort theory, the statute of limitations bars any tortious interference claim regarding the pre-1998 Evaluation events. The Hospital Defendants, Physician Defendants, and Defendant Beverly are entitled to summary judgment on any claims arising from the pre-1998 Evaluation events.

E. Intentional Infliction of Emotional Distress

Plaintiff also asserts a claim for intentional infliction of emotional distress ("IIED") against Defendants Hicks and Santos.

Defendants Hicks and Santos argue that Plaintiff's IIED claim fails on its merits, but also that the claim is barred by the applicable statute of limitations. As the Court finds that Plaintiff's IIED claim is barred in its entirety by the statute of limitations, it is not necessary to address the merits of the claim.

Under Georgia law, an IIED claim must be brought within two years after the right of action accrues. O.C.G.A. § 9-3-33. The evidence in the record shows that Plaintiff's claimed IIED symptoms, anguish, severe fright, horror, grief, shame, humiliation, embarrassment, etc., all began at the time of the 1998 Evaluation. Plaintiff even states in his response to the Motion for Summary Judgment that "[a] reasonable jury could easily conclude that Dr. Wood was humiliated and embarrassed by being required to submit to a 96 hour psychiatric lockdown, only to be found unimpaired." (Doc. 507, p. 20). It is clear that Plaintiff's IIED claim accrued more than two years before July 13, 2005.

Plaintiff attempts to salvage his IIED claim by again relying on the continuing tort doctrine. The Mears case upon which Plaintiff relies does not support Plaintiff's position, however, as it also applies the discovery rule. Mears, 225 Ga. App. at 636. The Mears court held that the plaintiff's IIED cause of action accrued when the defendant's conduct "allegedly culminated in damage," which was when the plaintiff took medical leave as a result of the defendant's alleged actions. Because the plaintiff did not file her claim within two years of the date she discovered the injury, the statute of limitations barred it. Id.

Similarly, in Fox v. Ravinia Club, Inc., 202 Ga. App. 260, 414 S.E.2d 243 (1991), the plaintiff brought an IIED claim for a series of actions resulting in her termination from her job in August 1987. The plaintiff filed her complaint in August 1989, but the appellate court held that her cause of action for IIED accrued no later than April 1987, which was when the plaintiff began seeing a psychologist. Id. at 261.

Here, Plaintiff discovered his injury in October of 1998. He first began experiencing the embarrassment and anguish associated with his IIED claim at that time, and also began discussing those matters with his psychiatrist. Plaintiff filed his complaint more than two years after his cause of action accrued with discovery of the IIED injury in October 1998. Plaintiff's IIED claim is barred in its entirety. Defendants Hicks and Santos are entitled to summary judgment on Count XI of Plaintiff's Second Amended Complaint.

To the extent any of the IIED claims against the Hospital Defendants, Physician Defendants, Defendant Beverly, or Defendant Simms relate to matters outside the 2004-2005 Action, 2001 Action, and 1998 Evaluation, those claims are also barred by the statute of limitations.

F. Punitive Damages

Plaintiff has requested an award of punitive damages against Defendants Hicks and Santos. In Georgia, punitive damages "may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant's actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to the consequences." O.C.G.A. § 51-12-5.1(b). Georgia courts have consistently recognized that a claim for punitive damages is effective only if there is a valid claim for actual damages to which it could attach, and that punitive damages may not be recovered if there is no entitlement to compensatory damages. J. Kinson Cook of Ga., Inc. v. Heery/Mitchell, 284 Ga. App. 552, 561, 644 S.E.2d 440, 449 (2007); Nelson Hill, P.A. v. Wood, 245 Ga. App. 60, 67, 537 S.E.2d 670, 677 (2000).

As the Court has determined that Defendants Hicks and Santos are entitled to summary judgment on all of Plaintiff's substantive claims against them, no claim exists to which a punitive damages claim can attach. Defendants Hicks and Santos are entitled to summary judgment in their favor on Count XII.

Similarly, any punitive damages claims against the Hospital Defendants, Physician Defendants, Defendant Beverly, or Defendant Simms that relate to matters outside the 2004-2005 Action, 2001 Action, and 1998 Evaluation fail as there is no substantive claim to which a punitive damages claim can attach.

G. Attorney's Fees

Plaintiff has also made a claim for attorney's fees and expenses of litigation against Defendants Hicks and Santos under O.C.G.A. § 13-6-11. The Eleventh Circuit has held that a claim for attorney's fees under § 13-6-11 requires an underlying claim. Gilmour v. Gates, McDonald Co., 382 F.3d 1312, 1316 (11th Cir. 2004). See also Hopkinson v. Hopkinson, 239 Ga. App. 518, 519, 521 S.E.2d 453, 454 (1999). Like the punitive damages claim, no claim exists to which an attorney's fees claim can attach. Defendants Hicks and Santos are entitled to summary judgment in their favor on Count XIII.

Like the punitive damages claim, the attorney's fees claim is barred as to the Hospital Defendants, Physician Defendants, Defendant Beverly, and Defendant Simms because there is no substantive claim to which it can attach.

H. Conclusion as to Defendants' Motions for Summary Judgment

For the reasons discussed above, the Hospital Defendants' Motion for Summary Judgment (Doc. 462), the Physician Defendants' Motion for Summary Judgment (Doc. 464), Defendant Simms' Motion for Summary Judgment (Doc. 466), and Defendant Beverly's Motion for Summary Judgment (Doc. 472) are granted.

VI. ANALYSIS AS TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND AMENDED MOTION FOR SUMMARY JUDGMENT

A. Relief Sought

Plaintiff moves for summary judgment in his favor on a number of affirmative defenses asserted by the Hospital Defendants (Doc. 401, ¶¶ 294-299, 302), the Physician Defendants, (Docs. 402-408, 410, ¶¶ 295-301; 409, ¶¶ 293-299), Defendant Beverly (Doc. 483, ¶¶ 292-296, 298), and Defendant Simms (Doc. 415, ¶¶ 295-301).

Plaintiff moves for judgment on the affirmative defenses set forth by Defendant Simms but did not provide an accurate docket reference for Defendant Simms' answer. The one provided by the Court is correct.

Specifically, Plaintiff seeks judgment that Defendants are not:

(a) immune from liability under HCQIA;

(b) immune from liability under the Georgia peer review statute, O.C.G.A. § 31-7-132;

(c) immune from liability under the Georgia medical review statute, O.C.G.A. § 31-7-141; or

(d) entitled to a release from liability based on Plaintiff's reappointment applications.

Plaintiff also moves for summary judgment on the counterclaims brought by the Hospital Defendants. Counterclaim I is a breach of contract claim brought by the Hospital, Counterclaim II is a breach of contract claim brought by Defendants Story and Hartsfield, Counterclaim III is a claim for declaratory judgment brought by the Hospital and Defendants Story and Hartsfield, and Counterclaim IV is a claim for declaratory judgment brought by the Hospital Defendants relating to HCQIA immunity.

Plaintiff's Motion and Amended Motion for Summary judgment are governed by the summary judgment standard under which summary judgment must be granted if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue to any material facts and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).

B. Defendants' Affirmative Defenses

1. Immunity under HCQIA

The issue of HCQIA and its applicability to the Defendants has been discussed exhaustively in this Order. The Court has determined that to the extent it is applicable to each Defendant, HCQIA provides immunity for the 1998 Evaluation, 2001 Action, and 2004-2005 Action. As the Court has determined that HCQIA does in fact provide immunity from liability to Defendants, Plaintiff's Motion for Summary Judgment and Amended Motion for Summary Judgment on that issue are denied.

2. Immunity under the Georgia Peer Review Statute

In an order entered on June 29, 2006 (Doc. 42), the Court stated that for the purposes of this case, Georgia' peer review immunity statute, O.C.G.A. § 31-7-132, was preempted, and the issue of immunity would be determined under the framework of HCQIA. Thus, the affirmative defense is actually moot, and because of the mootness, Plaintiff's Motion for Summary Judgment and Amended Motion for Summary Judgment with regard to the Georgia peer review immunity statute are denied.

3. Immunity under the Georgia Medical Review Statute

O.C.G.A. § 31-7-141 provides that there "shall be no monetary liability on the part of and no cause of action for damages shall arise against any member of a duly appointed medical review committee for any act or proceeding undertaken or performed within the scope of the functions of any such committee if the committee member acts without malice or fraud." However, like the Georgia peer review statute, the medical review statute is preempted by HCQIA. See Patton, 260 Ga. App. at 208; Patrick v. Floyd Med. Ctr., 255 Ga. App. 435, 444, 565 S.E.2d 491, 499-500 (2002). Thus, the affirmative defense is moot, and because of the mootness, Plaintiff's Motion for Summary Judgment and Amended Motion for Summary Judgment with regard to the Georgia medical review statute are denied.

4. Release based on reappointment applications

Finally, with regard to the affirmative defenses, Plaintiff moves for judgment that Defendants are not entitled to a release from liability under Plaintiff's reappointment applications.

As the Court has determined that the Defendants are all entitled to summary judgment on the claims against them, either because they are entitled to HCQIA immunity, or on the merits of the claims, the Court finds the release affirmative defense to be moot. Because of the mootness, Plaintiff's Motion for Summary Judgment and Amended Motion for Summary Judgment with regard to the release affirmative defense are denied.

C. Hospital Defendants' Counterclaims

1. Counterclaim I

When Plaintiff applied for reappointment to the medical staff in 2002, he signed the 2002 Reappointment Agreement with the Hospital. Plaintiff agreed that if reappointed to the medical staff he would seek consultations whenever necessary or required, abide by generally recognized ethical principles applicable to his profession, and provide continuous care and supervision as needed to all patients in the Hospital for whom he had responsibility. (Doc. 401-4).

The Hospital alleges in Counterclaim I that Plaintiff breached these contractual obligations in 2004 by taking, or failing to take, the actions which ultimately led to the termination of Plaintiff's medical staff privileges in 2005. The president and chief executive officer of the Hospital has filed an affidavit in which he states that as a result of Plaintiff's breach of contract: (1) the Hospital was forced to spend enormous amounts of money in legal fees and costs associated with the 2004-2005 Action, as well as this lawsuit; (2) the Hospital has advanced attorney's fees and costs on behalf of the other Defendants in this litigation; (3) Plaintiff has acted in bad faith, been stubbornly litigious, and has caused the Hospital unnecessary trouble and expense; and (4) the Hospital's operations have been significantly disrupted by Plaintiff as a result of his breach of contract, causing the Hospital further damages. The examples of this disruption given include "the harm caused to the Hospital's nursing and support staff as a result of Dr. Wood's rude and boorish conduct, the

cost and expense including legal fees associated with the investigation of Dr. Wood's behavior in 2004 and the hearing and appeal that were occasioned by Dr. Wood's behavior, and the reluctance of the Hospital's medical staff to participate in peer review activities as a result of this litigation." (Doc. 519-12).

Plaintiff has not moved for summary judgment on the merits of the Hospital's breach of contract claim. Instead, he argues that he is entitled to summary judgment because the Hospital has not provided any facts to support its damages claims. When Plaintiff asked the Hospital in discovery to provide a specific dollar amount of damages claimed in Counterclaim I, an itemized calculation for that amount, and the facts forming the basis for that amount, the Hospital objected to the interrogatory as being overly broad and unduly burdensome, as violative of the attorney-client privileges, and as being premature. Plaintiff did not, however, file a motion to compel further response from the Hospital. There was nothing improper about the Hospital's objections, and even if there was, Plaintiff should have made that argument in a motion to compel, which he did not. If Plaintiff believed the Hospital was required to provide more information with regard to its damages claims, a motion to compel was the appropriate vehicle for that argument. The Court is not now going to grant summary judgment in Plaintiff's favor because the Hospital exercised its right to object to the discovery requests.

In any event, the failure to prove damages does not entitle Plaintiff to summary judgment because "in every action for breach of contract, even if there is no actual damage, the injured party may recover nominal damages sufficient to cover the costs of bringing the action." O.C.G.A. § 13-6-6. See also Trickett v. Advanced Neuromodulation Sys., Inc., 542 F.Supp.2d 1338, 1352 (S.D.Ga. 2008). A plaintiff does not have to prove monetary damages to survive summary judgment on a breach of contract claim. See Poe v. Sears, Roebuck Co., Inc., 1 F.Supp.2d 1472, 1477 (N.D.Ga. 1998) (holding that the possible recovery of nominal damages is sufficient to preclude summary judgment).

As Plaintiff has not met his burden to show there is no genuine issue of material fact with regard to Counterclaim I, it is up to the jury to decide whether Plaintiff breached the 2002 Reappointment Agreement with the Hospital, and what, if any, damages the Hospital is entitled to. Plaintiff's Amended Motion for Summary Judgment on Counterclaim I is denied.

2. Counterclaim II

In Counterclaim II, Defendants Story and Hartsfield bring a breach of contract action against Plaintiff based on the 2002 Reappointment Agreement. They argue that they were authorized representatives of the Hospital as described in the release and immunity provisions of the 2002 Reappointment Agreement between Plaintiff and the Hospital, and were therefore intended beneficiaries of the contract. Defendants Story and Hartsfield state that because of Plaintiff's alleged breach of the 2002 Reappointment Agreement they were forced to spend money in legal fees and costs in defending the action, and that Plaintiff has acted in bad faith, been

stubbornly litigious, and has caused them unnecessary trouble and expense, including have to take several days away from their jobs to respond to Plaintiff's discovery and prepare for and give a deposition.

To support a breach of contract action brought by a non-party, the contract "must contain a promise to render some performance to a third person and it must evince both parties' intent that the third person be the beneficiary. . . . The mere fact that [the third party] would benefit from performance of the agreement is not alone sufficient." Allstate Ins. Co. v. Sutton, 290 Ga. App. 154, 160-61, 658 S.E.2d 909, 915-16 (2008). While Defendants Story and Hartsfield certainly would benefit as members of the medical staff and Hospital administration if Plaintiff was to abide by the 2002 Reappointment Agreement, there is no promise in the Agreement by Plaintiff to render performance to Defendants Story and Hartsfield. Plaintiff agreed to render performance to the Hospital.

The Court does not believe Defendants Story or Hartsfield are entitled to recover any attorney's fees or other damages under a breach of contract theory. If Plaintiff breached the 2002 Reappointment Agreement, that is a matter between Plaintiff and the Hospital. If Defendants Story and Hartsfield believe they are entitled to recover attorney's fees, they may raise that in a motion under 42 U.S.C. § 11113, if appropriate. Plaintiff's Amended Motion for Summary Judgment as to Counterclaim II is granted.

3. Counterclaim III

The Hospital Defendants have requested in Counterclaim III that the Court declare that the various applications signed by Plaintiff in connection with this reappointment to the medical staff are valid and effective, and that the applications preclude Plaintiff from recovering damages on any of the counts contained in Plaintiff's Second Amended Complaint. However, the Court has already determined that the Hospital Defendants are entitled to immunity under HCQIA. As the relief requested in Counterclaim III, a determination that Plaintiff cannot recover money damages against the Hospital Defendants, has already been given to the Hospital Defendants, Counterclaim III is dismissed as moot. Because Counterclaim III has been dismissed, Plaintiff's Amended Motion for Summary Judgment on Counterclaim III is denied.

4. Counterclaim IV

The Hospital Defendants have requested in Counterclaim IV that the Court declare that they are immune from damages under HCQIA. The Court has discussed in depth the reasons why the Hospital Defendants are entitled to immunity under HCQIA. Accordingly, Plaintiff's Amended Motion for Summary Judgment on Counterclaim IV is denied.

D. Conclusion as to Plaintiff's Motion for Summary Judgment and Amended Motion for Summary Judgment

For the reasons discussed above, Plaintiff's Motion for Summary Judgment on Defendants' Affirmative Defenses Claiming Immunity and Release (Doc. 468) is

denied. Plaintiff's Amended Motion for Summary Judgment on Defendants' Affirmative Defenses Claiming Immunity and Release and Hospital Defendants' Counterclaims I-IV (Doc. 500) is granted, in part, and denied, in part.

VII. GLOBAL CONCLUSION

The Hospital Defendants' Motion for Summary Judgment (Doc. 462) is granted, the Physician Defendants' Motion for Summary Judgment (Doc. 464) is granted, Defendant Simms' Motion for Summary Judgment (Doc. 466) is granted, Plaintiff's Motion for Summary Judgment (Doc. 468) is denied, Plaintiff's Amended Motion for Summary Judgment (Doc. 500) is granted, in part, and denied, in part, and Defendant Beverly's Motion for Summary Judgment (Doc. 472) is granted.

Counterclaim I brought by the Hospital will be tried during the October term of court in Valdosta, which is scheduled to begin on October 18, 2010.

SO ORDERED.