argument first is how should this market function how should it really work if it's going to be effective if children going to a hospital are going to be effectively serviced by qualitative and quantitative le i want to be the best it can possibly be i want to physicians to be of the highest possible quality i wanted them to be competing with each other in a  my most widely used in virtually every medical school in the english speaking world and most medical schools throughout the world she is the clinical professor of pediatrics radiology at u there is no objective dept the doctor hilton is not only qualified to practice pediatric radiology let me move on i that if regulatory procedures were followed healthcare actions and activities are properly taken they are presumed to be ok here what we have is a failure of the key thing that was going on was an explicit market division agreement between the defendant such that no one who was not employed by the senior red radiology group could practice pediatric radiology  for your honor she was i think exceedingly for tonic but the target was always moving she was asked for her clinical experience she provided that she went to a five week continuing education program at university in cincinnati and after children's learned of that then they asked for that information meanwhile and it is not in front of you because we didn't learn of it until we were coming up here employees are prospective employees of the city or radiology group were getting privileges within two to three weeks and these were people who were not board certified pediatric radiologists they were just radiologists no it's not but you can't consider that directly your honor but i think you can consider it within the scope especially on the twelve the six records of the information consistent with complaints that we could have come forward with had we had we've been given the opportunity for example in a summary judgment motion as opposed to a motion to dismiss simply on the initial lead i think in that way we can consider it but i think to give you the accurate snapshot you have this incredibly qualified  is hanging out there for more than a year waiting for a yes or no answer repeated written demands given in which you're at least going to make a decision and she never got a response  so we follow a lawsuit in may of two thousand having never received a response the question of will you let me practice or will you not let me practice what's the target what's the objective standard i'm time out i'm tired of the target shifting you're going to be asking me for information in two thousand just make a decision they still didn't do that until the lawsuit was filed and served and then a the university of california and the san diego radiology group that has in fact an enforced by the medical chief of staff and the department chair at children's hospital is much broader than a professional review action or a professional review activity now has grants conditional immunity only for professional review actions a professional review ac defendants here yesterday for me and i trust liability for what they did and what they were doing so we've got to look with i think a focused lens at the stache the statute gives first of trust agreed yes right when the university of california elected with children's inducement to shut down its pediatric wing at university hospital part of that you qualify because we have this market she was told she couldn't apply for privileges by dr rad she of the university of california because of the market division agreement she decided to heck with you folks i'm trained clinicians work without equipment we cited in the initial complaints children's hospitals and marketing materials for websites where if you've got a kid who has something more than a broken bone more than more than kind of the routine child if they need specialized critical medical care children's hospital within san diego literally defines that relevant market because of the assets it has and that's great  running also departments with the radiology department and at the same time dr hilton is twisting slowly in their own people much less qualified are getting in immediately because they're going to be a profit center f there is a limit conditional on the unity for professional review action a conspiracy to never take an action never make a decision to let it sit for ever if that's what it took isn't a professional review action under the statute it is in fact an active contract combination and conspiracy under section one of the sherman act were you ever gets an opportunity to establish as a matter of fact that what was happening here and i trust violations blocking your clients from participating on one hand or a peer review on the and then economies and in fact the trial court never gave us thirty seconds of oral argument not even a summary judgment on that page never came up and you're arguing i guess at the very least there's a genuine issue of material fact as to what it was that was is never used in the hacker statute are professional review action professional review activity they are tightly the farm well i know that you distinguish between that she's seeking new prevale reviewing their work and whether it's to be suspended or whatever crackpot my interest standing is the whole purpose is to so that people will come forward and say if someone's doing a bad job so that those of us that don't know any better when we go same thing you want doctors to half against other doctors and say this is a very good doctor and that you know we're going to protect the public from this individual whether it be granting them privileges or taking them away or whatever which brings me to the discreet issue of how the heck was statute integrates with the and i stress laws how it's for the function and it's very important i think that you look at eko for what it is not what you might write least think it is based on the  misreadings of the district court doesn't grant blanket immunity for anything anybody does in terms of qualitative peer review that what the statute says it certainly isn't  just flushed that away by saying it became moot because we kind of got what we wanted after we filed the lawsuit therefore we shouldn't have filed the lawsuit that's circular reason the fire was my processing and i hope it  your secondly the statute provides only conditional conditional immunity for a peer review action yes there that actually meets all the standards s in section one one one one two which most specifically says that they got in trouble that what they were doing was in fact to generate quality medical we wouldn't provide any services so that thing patients even if they came back a week later after an accident my concern isn't making money or generating a bunch of villains i care about my patients and if i've got a patient here and then i'm going to be out of service for a twelve hour period and she needs additional emergency radiology work and these guys are saying we're not going to see that patient we are going to refuse to provide her medical care if your fingerprints are on that patient file doctor hilson work in an environment like that because it's not safe for patients i'm going to retreat for a we absolutely do want qualified physicians reviewing other physicians get rid of the bad ones keep the bad ones out keep looking at them on an ongoing basis make sure that quality health care is being delivered and no problem with that objective whatsoever that's a person and title to immunity under the  yeah there can there can be no just uhm i don't believe there's been a dispute from a palace with regard to whether the the defendant entities are proper subject matters of of potential immunity they are they are reviewing emotion as opposed to a summary judgment and basically that you know the plaintiffs thrown out and they're saying this really isn't a peer review case this is about people keeping a doctor from working not because she's not qualified it has nothing to do with any of those things because they have this marketing agreement and she and what was going on here was not peer review it was abstract first behavior trying to look like peer review and when really in fact nothing was going going on well you know this and what i mean we don't have that record before us because it's a trial be you know it's just it's gone and how we don't know whether that's turn out but they're saying that what they could show factual record because the factual record was distorted by mr one and i can certainly clarify that but the important point them for legal point is that what's being challenged here at least with respect to children's hospital is exclusively what is defined under to  review activities are subject to absolute immunity there can be there can be no set of facts if somebody applies and the person is responsible for granting the privileges or not say we're keeping her out because we don't like where she lives and they have a hospital down there so she's just out here is that peer review activity in title to unity every well it is it is in this request made by the hospital that was not relevant to a qualification for hospital asked for indisputably important material evidence that she had received these privileges from other hospitals evidence that she was qualified to perform to perform the the additional function judicial  function they want to asking for for where she lives they weren't asking for where she went to high school they were asking for whether she was taught from one of the services that the allegation from the other side is this was just a smokescreen when it really had to do it was  dragging feet and all the rest that kind of stuff it really had to do with a market division agreement well you know why is it would be nice if we had some kind of a determination in the nature of summary judgment at the very least that it was peer review activity right now we have there's nothing in this record about martha division grieving involving children there's no allegations about a market division agreeing involving children there's no allegations if you want to address those questions to someone that is alleged to be a party has an agreement that you're more than welcome to but this there is with respect to children there is no market vision agreement and this is a very simple case with respect to children what we have here is pure and simple peer review activity and this court has has our counsel got up here and said there was a market division agreement the terms of that market division agreement are that at c d r and u c s d and children's hospital conspired to keep dr hilton out of children's hospital that's what the that's what the great grand and glorious agreement is supposed to be within three months of dr hilton applying for privileges to children's hospital she is granted every privilege she requests every single why that's what's in the record about a market division agreement it's clear that if this grand and glorious agreement was she's not going to practice the children's hospital why would children's hospital why would the d r which is supposedly again in the record there is supposedly an oral request in august for the privileges and then she makes a written request in november and one start written request is made frankly the ball starts rolling because there is a concern amongst those conducting the peer review of the hospital that she doesn't have sufficient clinical experience and and ultrasound and c t and that's what this whole de lay in question is about and if you again i would urge the court to look at the record there's a lot of e mails flying back and forth there are different requests that are made from the hospital as far as what you produce evidence  years dr shelton has not been involved in interpret in more than a handful of c t and ultrasound examinations that shortage of clinical experience that the hospital was so concerned about and that was driving this peer review and again going through the e mails going through the requests you'll see clearly from the records before this court that it is peer review trying to get to the bottom of this issue the hospital ask what's your experience your hands on experience on the south and they get back i want to cincinnati and observed and here's my letter from cincinnati that's not answering our question our question is what hands on experience did you have and that is one of the significant problems when when she made the request in november six months later it's not resolved granted that is not a particularly strong period of time but in peer review process that is not an extensive period of time especially when there is back and forth give and take and the questions being asked by the hospital are not being an agreement not your honor and again anywhere in the record it's not anywhere in the record other than the allegations in the complaint complaint and that would be the first complaint not a complaint that is part of the record asked correct your honor and  defendants which included all the individual named physicians as well as their medical group which was s p d are and what the different court did was he granted the motion to dismiss based on these being immune professional review activities with respect to all the parties but the district court wasn't sure whether f d r the group was one of the persons entitle to immunity under the statute so it denied the motion with respect to s t d are and then subsequently on behalf of s p d are we brought a separate motion to dismiss and then in opposition to that motion came a toppy of this proposed amended complaint with the footnote request rather than a motion from the too one area i want to touch on briefly your honour's is with respect to an alternative while we believe that hc was community applies here and because of the absolute privilege of professional review survey nationwide of cases and there are twenty eight of them cited in this opinion from all around the country the court concluded flat out tonight staffing decisions is not itself constitute an antitrust injury decision right and one of the staffing decisions that we're talking about and in the survey that they did was routine the denial of privileges right and what the court went on to say is that the cases involving staffing at a single hospital are legion hundreds perhaps thousands of pages and why publications are devoted to the issues those circumstances present those hundreds or thousands of pages almost always come to the same conclusion the staffing decision at a single often was not even a denial of staffing similar to our case here and the court had no trouble finding there was no antitrust injury in that case and another thing another point that the seventh walked as a matter of law because of an apparently uniform conclusion that without something more a staffing pattern dispute at one hospital does not cause an unreasonable restraint of trade within the ambit of the antitrust law r the notion of promoting peer review and removing obstacles to physicians participating is very few and of course i think have including often have indicated that the question of immunity should be decided as quickly as possible in the proceedings in order to minimize the negative aspects and the negative drag that this litigation has on those doctors participating in peer review that's a judgment call the congress and that's the judgment call that the court including the ninth circuit in austin have gone in and signed up on and here we have a situation where particularly where you've got a  eged market division agreement or market share agreement that makes no sense compared to the history of what has occurred as far as dr hilton being granted immediately the privileges all the privileges she requested and then subsequently being granted the additional privileges she requested seems to me that in further in the policy of to minimize the burdens of litigation on thousands of physicians across the country are participating in peer review situation that we've got very few activities absolute immunity applies that decision should be made quickly in order to minimize the expense and further the public policies behind thank you your  a single trouble doctor you know plural market with lots of hospital or lots of factors that may be a concern for the doctor is that a concern for the market no none of those cases cited by the seven circuit involved a children's hospital within a given geographic markets literally defined the market none of those cases involve a specialty group whether cardiology radiology or any other where the private proprietary partnership controlled against two admissions so that field of practice and if you didn't practice at that hospital you couldn't practice in that geographic market you know i can be a radiologist in san diego and not practice with children if i were simply a radiologist introduce wouldn't let me in for whatever reason i probably couldn't state antitrust injury because there's a plethora of other hospitals if i'm a pediatric radiologist that doesn't do garden variety pediatric radiology but says the heavy stuff there used to be two places university hospital operated by literally defined by children's to be as competitive as possible does this relate only to dr hilton no the allegation anyway and we believe the evidence will show the restriction of the restraint is on