UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 00-51265

____________

PV PATEL, MD, individu ally; PV PATEL, MD, A Professional

Associ ati on; THE HEART CENTER; ECHO LAB

INCORPORATED; ASSOCIATES OF MIDLAND

CARDIOVASCULAR AND INTERNAL MEDICINE, A

Professional Association, also known as Midland Cardiovascul,

Plaint iffs - 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,

Defendan t s - Appellees - CrossAppellants

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.1 Four associations in which Dr. Patel has an interest—P.V. Pat el, M.D., Professi onal

Association; The Heart Center; Associates of Midland Cardiovascular & Interna l Medicine,

Professional Association; and Echo Lab, Inc.—were also named plaintiffs in the suit.

2 Invasive cardiology includes angio grams or studies on the coronary arteries in a cardiac

catheterization laboratory. Interventional cardiology includes procedures on coronary arteries in a

cardiac cat h lab, including the placement of a balloon or angioplasty, the placement of stents, and

-2- 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 hospit al’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 T EX

. B US

. & C OM

. C ODE A NN

. § 15.05 (Vernon 2001);

and (4) engaged in conduct that constit ut ed 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. §§ 111 01-11152 (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

bo ard-certified cardiologist who specializes in invasive and interventional

cardiology. 2 He joined the staff o f Midland Memorial Hospital (“Midland”), a public hospital, inrotablater therapy.

-3-

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 maint aining a practice at Odessa Medical Center and opening his own cardiac

cath labs and primary care clinics, at ti mes 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 attenti on 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 h is 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

t he 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 to3 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., D epart ment o f 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 init ially named as a defendant, Dr. Foster has since been dismissed from this case.

-4- 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

A t t he 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.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.

-5- 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

s tating that Dr. Patel was “not operating in a safe fashion” while performing certain coronary

procedures and t hat 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 outcom e of that report.

Dr. Foster then requested that t he 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 indicat io n, (b) wit h poor technical skills, or (c) in coronary vessels

po o rly suited for the procedure. Dr. Lange also found problems in the cases that suggested po o r

medical judgment. Two days later, the MCC reviewed Dr. Lange’s report and voted to recommend8 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.

-6- the suspension of all of Dr. Patel’s privileges. Upon the MCC’s request, the MEC met to consider

the evidence and the recommen dat io n 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 immediat ely

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 t he ho spit al’s continued concerns about the quality of Dr. Patel’s practice.

Aft er 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, t he Hearing Committee recommended that Dr. Patel’s clinical privileges be

rest o red, 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 restorati on 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 “in9 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. B a rnett, 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. Bro wn, Miller, and Barnett are

members, competes with Dr. Patel at Midland for cardiology services.

-7- 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. P at el 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 proce ss 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 T EX

. B US

. & C OM

. C ODE A NN . § 15.05; and

(4) engaged in co nduct t hat constituted breach of contract, defamation, and interference with

contractual relationships. The district court dismissed all of Dr. Patel’s claims on summary judgment,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. S ee Gilber t v. Homar

, 520 U.S. 924 (1997) (assuming without deciding that a

suspension infringes on a protected property interest).

-8- but failed to reach the Defendants’ claim for immunit y and attorneys’ fees under HCQIA. Both sides

now appeal.

II

We review a district court’s grant of summary judgment de novo. G renier v. Med. Eng’g

Cor p. , 243 F.3d 200, 203 (5 t h 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.” F E D

. R. C IV

. 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 (5 th Cir. 2000).

On appeal, Dr. Patel contends that he has prese nt ed 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 opportuni ty to be heard on the allegations12 To be sure, Dr. Patel only challenges as inadequate his pre- suspension process. He concedes

that his post -suspension hearing com ported 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 r ight].” 42

U.S.C. § 1983.

-9- 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 opportuni ty to be heard

prior to the deprivation of a protected property interest. S ee , 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.” C aine v. Hardy

, 943 F.2d 1406, 1412 (5 th 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-suspens io n pro cess due a physician where

patient safety was considered to be at risk. In C aine 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 1412.14 In an effort to call into question the reason given for his suspension—patient safety—Dr.

Pat el attempts to discredit the individual reports relied upon by the MEC. Specifically, Dr. Pat el

challenges the credentials of his reviewers and questions the fact that each reviewer examined only

a small percentage of his cases. Al though Dr. Patel m

ay be correct that a m

ore 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

suspe nd. 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.

-10- 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 investigat io n o f 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 rec ent mo rbidity/mortality cases; an outside review from Dr. Lange

co ncluding that six of the ten patients whose cases he reviewed died as a “direct result o f an

int erventional procedure” performed by Dr. Patel; and the recommendation of the MCC, after

independently reviewing the cases discuss ed in the Cardiovascular Committee’s report, that Dr.

Patel’s privileges be suspended immediat ely. 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 safet y. 1 4

Because pre-suspension process was not practical under these circumstances, Dr. Patel’s due process-11-

rights were not violated.

Dr. Patel contends that Caine does not resolve the question of whether he received adequate

pre-suspension proc ess 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 tha t he was not a ctually

dangerous at the time of his suspension, we b elieve 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. G ilbert

, 520 U.S. at 933 (stating that

t he 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 t he

evidence before it, the MEC had such grounds. The fact that Dr. Patel was later abl e 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 dange r at the time of his15 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.

-12- 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 info rmal 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 ac t ion 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 grant ed 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 ra ther because he was16 Since Dr. Patel filed his principal brief, we have held that § 1981 does not provide a remedial

cause of action against local government e nt ities and local government officials in their official

capacities. O den v. Oktibbeh a Cty. , 246 F.3d 458, 463 (5 t h Cir. 2001). Recognizing that O den

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.

-13- 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. P ratt v. City of Houston

, 247 F.3d 601, 605 n.1

(5 th 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 t o t he defendant to articulate a legitimate, nondiscriminatory

reason for its adverse decision. I d. at 606. If the defendant presents such a reason, then the inference

disappears, and the plaint iff must offer evidence that the proffered reason is a pretex t 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

t o survive summary judgment, Dr. Patel must proffer sufficient evidence of pretext to creat e 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 attem

pts 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 him17 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 tryi ng t o 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.

-14- 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 fo rmer 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 repeatedl y 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 init ial 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. S ee Price v. Fed.

Exp. Corp.

, 283 F .3d 715, 723-24 (5 t h 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 plaint iffs 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 t h at 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 his18 Dr. Patel also suggests that the inadequacy o f 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. S ee 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 h ad no reason to doubt the apparent quality of that evidence, the

evidence of “falsit y” here is not sufficient to create an inference that patient safety was merely a cover

for discriminatory intent. I d. at 148 (noting that there will be “instances where, although the plaint iff

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”).

-15- 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 attem pts 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 Co mmittee’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 g o d damn Indian quack and I want him out of here. I want his ass out of

here.” Finally, soon after t he second comment was made, an administrator allegedly stated, after

hearing a complaint about t he room conditions of one of Dr. Patel’s patients, that “he didn’t care19 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.” S ee Amended Order at 11. Dr.

Patel does not mention this alleged statement in either of his briefs on appeal, or in any o f 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.

-16- 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 sho wn t hat t hese statements are more than “stray

remarks.” S ee Wallace v. Methodist Hosp. Sys.

, 271 F.3d 212, 222-25 (5 th 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 i n t he wo rkplace to provide sufficient evidence of

discrimination, they must be “1) related [to the protected class of persons of which

the plaint iff 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 (5 th 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 invest igate his practice or suspend his privileges. S ee Brown

, 82 F.3d at 655-56

(“Comments that are vague and remote in time are insufficient to establish discrimination.” (internal

quotati ons and citations omitted)). Moreover, Dr. Miller had no authority over the decision to

suspend Dr. Patel. S ee 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.20 We note that, i n addit io n to failing to establish pretext, Dr. Patel has failed to present

sufficient evidence from which a rational factfinder could conclude that Midland had a c ustom or

policy of racial discrimination. S ee 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

o fficially adopted and promulgated by that body’s officers”); Gros v. City of Grand Prairie

, 181 F.3d

613, 615 (5 th Cir. 1999) (“Liabilit y 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

o f 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 allege d 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.

-17- Miller’s role in Dr. Patel’s suspension was limit ed to the report he drafted on behalf of Dr. Brown

and the Cardiovascula r Co mmit tee, which recommended outside review of Dr. Patel’s cases. Dr.

Mil ler 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 indi vidual 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. 2122 According to Dr. Patel, the relevant geographic market in this c ase 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 fift y percent of these services in Midland. Drs. Brown

and Miller, both part of the Permian Cardiology Group at Midland, performed thirty-fi ve to f orty

percent of these services. For purposes of this appeal, we assume a rguendo that these averments are

correct.

-18- V

Dr. Patel next argues that the district court erred in granting summa ry judgment to the

Defendants on his federal an d state antitrust cl ai m s. S ee 15 U.S.C. §§ 1 & 2; T EX

. B US

. & C OM

.

C ODE A NN

. § 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. S ee infra note 17 and accompanying text. According

to Dr. Patel, after the Defendants’ previous attem pts to block the expansion of his practice failed, they

res o rt ed 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 reputati on 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 his23 We also note the lack o f evidence connecting this alleged “pattern” of anticompetitive

behavior with the indi v idual 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.

-19- 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 ultimate25 Dr. Patel does not allege that any of the five members of the MCC who recommended

suspension, or any o f t he 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.

-20- decision to suspend his privileges. 25

Second, Dr. Patel’s antitrust claims fail as a matter o f law because he has not alleged a

cognizable antitrust injury. S ee Brunswick Corp. v. Pueblo Bow l-O-Mat, Inc.

, 429 U.S. 477, 489

(1977) (“Plaintiffs must prove antitrust injury, which is to say injury of the type the antitrust l aws

were intended to prevent and that flows from that which makes d efendants’ acts unlawful.”). Dr.

Patel’s suspension did not eliminat e him as a competitor. He still continued to treat many of his

patients at another facilit y during the time of his suspension. 26 Moreover, his s u spension 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 it s do ct o rs acting in their official

capacities. S ee 15 U.S.C. §§ 34-36 (2000); T EX

. B US

. & C OM

. C ODE A NN

. § 15.05(g) (Vernon Supp.

2001). The LGAA provides, in relevant part:

N o 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 o fficial 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.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 immunit y and the stateaction doctrine.

-21- 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 opportuni ty 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 publicatio ns t o t hird parties.” Specifically, he argues that these

publications falsely stated that the summary suspension was j ust ified 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,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

st at ing 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. S ee Cinel v. Connick

, 15 F.3d 1338, 1345 (5 th Cir. 1994) (“A party

who inadequately briefs an issue is considered to have abandoned the claim.”).

-22- summary judgment was proper on this cl aim. 2 8 T E X

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 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 it s 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 just ified. S ee 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 o r (2) a go o d 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 immunit y from damages to any

person participating in a professional review action when the proceeding meets certain statutory29 U nder HCQIA, a defendant who meets the standards for immunit y under the statu te 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 plaint iff’s suit was frivolous or brought in bad faith. T E X

. O CC

. C ODE

A NN . § 160.008(c) (Vernon 2001).

-23- requirements); Te xas Medical Practice Act, T E X

. O CC

. C ODE A NN

. § 160.010(1) (Vernon 2001);

T EX

. H EALTH & S AFETY C ODE A NN

. § 161.033 (Vernon 2001) (providing immunit y 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 H CQIA or the Texas Peer Review statutes immunize the

Defendants in this case. As for the question of whether at t o rneys’ 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 di stri ct 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, T EX

. O CC

. C ODE A NN . § 160.008(c).