PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LINDA FREILICH, M.D., P.A.; LINDA 

FREILICH, M.D.,

Plaintiffs-Appellants,

v.

UPPER CHESAPEAKE HEALTH,

INCORPORATED, formerly know as

Harford Memorial Hospital;

BOARD OF DIRECTORS OF UPPER

CHESAPEAKE HEALTH, INCORPORATED,

formerly known as Harford

Memorial Hospital; CECILIO T.

CAMACHO, M.D., as a Director and

individually; JOAN P. EDWARDS,

M.D., as a Director and  No. 01-1890 individually; SCOTT S. HASWELL,

M.D., as a Director and

individually; SHIRLEY S. KLEIN, as a

Director and individually; JAMES

LAMBDIN, as a Director and

individually; ANTHONY J. MEOLI, as

a Director and individually; LYLE E.

SHELDON, as a Director and

individually; DAVID F. GONANO, as a

Director and individually; SHERIF H.

OSMAN, M.D., as a Director and

individually; ROGER E. SCHNEIDER,

M.D., as a Director and

individually; DIANE K. FORD, as a

Director and individually; 
H. WILLIAM ACKER, as a Director 

and individually; RANDALL

WORTHINGTON, SR., as a Director

and individually; UNITED STATES OF 

AMERICA; STATE OF MARYLAND,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Frederic N. Smalkin, Chief District Judge.

(CA-00-3605-S)

Argued: October 29, 2002

Decided: December 13, 2002

Before WILKINSON, Chief Judge, and WIDENER and

KING, Circuit Judges.

Affirmed by published opinion. Chief Judge Wilkinson wrote the

opinion, in which Judge Widener and Judge King joined. 

COUNSEL

ARGUED: Paul Steven Blumenthal, LAW OFFICE OF PAUL S.

BLUMENTHAL, P.A., Annapolis, Maryland, for Appellants. Jonathan Barkasy Sprague, POST & SCHELL, P.C., Philadelphia, Pennsylvania, for Appellees Upper Chesapeake Health, et al.; Wendy Ann

Kronmiller, Assistant Attorney General, Baltimore, Maryland, for

Appellee State of Maryland; Katherine Sutherland Dawson, Appellate

Staff, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee United States. ON BRIEF:

Jennifer M. Valinski, LAW OFFICE OF PAUL S. BLUMENTHAL,

P.A., Annapolis, Maryland, for Appellants. Brian M. Peters, POST &

2 FREILICH v. UPPER CHESAPEAKE HEALTH
SCHELL, P.C., Philadelphia, Pennsylvania, for Appellees Upper

Chesapeake Health, et al. J. Joseph Curran, Jr., Attorney General of

Maryland, Baltimore, Maryland, for Appellee State of Maryland.

Robert D. McCallum, Jr., Assistant Attorney General, Thomas M.

DiBiagio, United States Attorney, Mark B. Stern, Alisa B. Klein,

Appellate Staff, Civil Division, UNITED STATES DEPARTMENT

OF JUSTICE, Washington, D.C., for Appellee United States. 

OPINION

WILKINSON, Chief Judge: 

Dr. Linda Freilich is a physician. Harford Memorial Hospital

decided to terminate Dr. Freilich’s medical staff privileges after

undertaking an extensive review of her application for reappointment.

Dr. Freilich then filed a complaint challenging the constitutionality of

the federal statute granting immunity to peer review participants and

the Maryland physician credentialing statutes. In addition, Dr.

Freilich alleged violations of both the Americans with Disabilities Act

and the Rehabilitation Act and made various other common law

claims. Dr. Freilich’s complaint is an attempt to have a federal court

supervise what amounts to little more than a physician-hospital dispute over hospital policies and the expenditure of hospital resources.

We affirm the judgment of the district court dismissing her claims.

Freilich v. Bd. of Dir. of Upper Chesapeake Health, Inc., 142 F.

Supp. 2d 679 (D. Md. 2001). 

I.

Dr. Linda Freilich is a Board Certified Internist and Nephrologist

who maintained unrestricted hospital privileges at defendant Harford

Memorial Hospital (HMH), a private, non-profit hospital, from 1982

until April 12, 2000. During her tenure at HMH, Dr. Freilich states

she advocated the rights of her patients in order to improve their quality of care. Specifically, Dr. Freilich complained that the outsourcing

of quality assurance and oversight services for dialysis patients led to

an improper standard of care. 

FREILICH v. UPPER CHESAPEAKE HEALTH 3
Maryland state regulations require physicians to apply for reappointment every two years. See Code of Maryland Regulations

(COMAR) § 10.07.01.24. During the reappointment process, each

hospital must collect specific information about the physician applicant. The hospital then must analyze the physician’s pattern of performance based upon seven factors, including "adherence to hospital

bylaws, policies, and procedures" and "attitudes, cooperation, and

ability to work with others." Id. Pursuant to COMAR regulations,

HMH Medical Staff Bylaws provide that HMH will consider in the

reappointment process "ethics and behavior in the Hospital, cooperation with Hospital personnel as it relates to patient care or the orderly

operation of the Hospital, and general demeanor and attitude with

respect to the Hospital, its patients and its personnel." 

In July, 1998, Dr. Freilich applied for reappointment to HMH. Her

application went through several layers of review, passing before the

HMH Credentials Committee, the Medical Executive Committee, and

the Appellate Review Committee. Further, Dr. Freilich received a

hearing before the Ad Hoc Hearing Committee. Although the different committees disagreed on whether to accept or reject Dr. Freilich’s

application, on April 11, 2000, HMH’s Board of Directors voted to

deny Dr. Freilich’s application and terminated her medical privileges.

In a letter to Dr. Freilich explaining the basis for its decision, the

Board quoted the "ethics and behavior" language in the HMH Bylaws.

On December 11, 2000, Dr. Freilich filed a 14-count, 76-page complaint against HMH and fourteen individuals who were involved in

her peer review (collectively the "hospital defendants"), the State of

Maryland, and the United States. The complaint alleged that HMH

and its Board of Directors denied Dr. Freilich’s application for reappointment because she did nothing more than advocate the rights of

her patients. Specifically, Dr. Freilich alleged that the Health Care

Quality Improvement Act (HCQIA), 42 U.S.C. § 11101 et seq., which

provides qualified immunity from damages to persons who participate

in physician peer review, and the Maryland statute and regulations

governing physician credentialing, Health-General Article § 19-

319(e) and COMAR § 10.07.01.24(E), are all unconstitutional. She

also brought a claim under 42 U.S.C. § 1983 against the hospital

defendants, contending that the termination of her staff privileges violated her constitutional rights. Finally, Dr. Freilich alleged violations

4 FREILICH v. UPPER CHESAPEAKE HEALTH
of both the Americans with Disabilities Act (ADA) and the Rehabilitation Act (RA). 

In an extensive opinion, the district court dismissed the federal

claims with prejudice and the state law claims without prejudice.

Freilich v. Bd. of Dir. of Upper Chesapeake Health, Inc., 142 F.

Supp. 2d 679 (D. Md. 2001). Dr. Freilich now appeals. We review a

dismissal for failure to state a claim de novo, Eastern Shore Mkts.,

Inc. v. J.D. Assoc. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000), and

assume the facts as stated in the complaint are true. See Jenkins v.

Medford, 119 F.3d 1156, 1159 (4th Cir. 1997) (en banc). 

II.

Dr. Freilich brings several constitutional challenges to the Health

Care Quality Improvement Act, 42 U.S.C. § 11101 et seq. The

HCQIA limits liability in damages for those who participate in professional peer review. For HCQIA immunity to attach, however, the peer

review action must comport with due process. More specifically, the

professional review action must be taken (1) "in the reasonable belief

that the action was in the furtherance of quality health care;" (2) "after

a reasonable effort to obtain the facts of the matter;" (3) "after adequate notice and hearing procedures are afforded;" and (4) "in the reasonable belief that the action was warranted by the facts known after

such reasonable effort to obtain facts." 42 U.S.C. § 11112. The

HCQIA also sets forth detailed standards to ensure that a physician

receives adequate notice and a hearing and exempts any claim alleging a civil rights violation or claims for declaratory or injunctive

relief. Id.

A.

We first address Dr. Freilich’s due process and equal protection

challenges to the HCQIA. Dr. Freilich first alleges that the HCQIA

violates the Fifth Amendment because it "authorizes and encourages

the Defendants [to] act irresponsibly in matters of credentialing, reappointment to the hospital staff, and wrongful denial of hospital privileges. . . ."1

 Because the HCQIA does not burden any fundamental

1Dr. Freilich argues that her challenge arises under the Fourteenth

Amendment. The HCQIA is a federal law. Dr. Freilich’s due process and

FREILICH v. UPPER CHESAPEAKE HEALTH 5
right or draw distinctions based on any suspect criteria, it is subject

only to rational basis review. Rational basis review is "a paradigm of

judicial restraint," FCC v. Beach Communications, Inc., 508 U.S. 307,

314 (1993), which prohibits us from "sit[ting] as a super-legislature

to judge the wisdom or desirability of legislative policy determinations." City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per

curiam). According a strong presumption of validity to the HCQIA,

we thus need only determine whether the HCQIA is rationally related

to a legitimate governmental purpose. See Beach Communications,

508 U.S. at 314-15 (1993). 

The legitimacy of Congress’s purpose in enacting the HCQIA is

beyond question. Prior to enacting the HCQIA, Congress found that

"[t]he increasing occurrence of medical malpractice and the need to

improve the quality of medical care . . . [had] become nationwide

problems," especially in light of "the ability of incompetent physicians to move from State to State without disclosure or discovery of

the physician’s previous damaging or incompetent performance." 42

U.S.C. § 11101. The problem, however, could be remedied through

effective professional peer review combined with a national reporting

system that made information about adverse professional actions

against physicians more widely available. However, Congress also

believed that "[t]he threat of private money damage liability under

Federal laws, including treble damage liability under Federal antitrust

law, unreasonably discourage[d] physicians from participating in

effective professional peer review." Id. Congress therefore enacted

the HCQIA in order to "facilitate the frank exchange of information

among professionals conducting peer review inquiries without the

fear of reprisals in civil lawsuits. The statute attempts to balance the

chilling effect of litigation on peer review with concerns for protecting physicians improperly subjected to disciplinary action." Bryan v.

James E. Holmes Regional Med. Ctr., 33 F.3d 1318, 1322 (11th Cir.

1994). 

Dr. Freilich’s complaint lists seventeen alleged defects with the

statute, such as permitting hearsay during the hearing proceedings and

equal protection challenges therefore more properly arise under the Fifth

Amendment. See Int’l Sci. & Tech. Inst., Inc. v. Inacom Communications, Inc., 106 F.3d 1146, 1156 (4th Cir. 1997). 

6 FREILICH v. UPPER CHESAPEAKE HEALTH
permitting the denial of privileges when there are no findings of

incompetent behavior by the physician. Apparently, she would like

this court to rewrite the HCQIA. Opinions may differ on what is the

most effective way to improve the quality of our nation’s health care

system. However, we cannot substitute our judgment, or that of Dr.

Freilich, for Congress’s rationally based belief that the HCQIA is an

effective means to achieve its goal. See Heller v. Doe, 509 U.S. 312,

333 (1993). 

B.

The HCQIA adopts an objective reasonableness test. As noted earlier, the HCQIA only applies if a peer review action is taken in the

reasonable belief that the action was taken (1) after a reasonable effort

to obtain the facts; (2) after adequate notice and hearing procedures

are afforded the physician involved; (3) in the reasonable belief that

the action was warranted by the facts; and (4) in the reasonable belief

that the action was in the furtherance of quality health care. 42 U.S.C.

§ 11112(a), (b). The standard, then, is one of objective reasonableness

after looking at the "totality of the circumstances." Imperial v. Suburban Hospital Assoc., 37 F.3d 1026, 1030 (4th Cir. 1994). 

Dr. Freilich alleges that the HCQIA is unconstitutionally vague in

violation of the Due Process Clause. She contends that the HCQIA

reasonableness standard governing peer review immunity "authorizes,

encourages, and permits HMH to act with impunity" because the

"HCQIA does not specify what constitutes ‘reasonable belief.’" 

Dr. Freilich’s vagueness challenge is an odd one. To begin with,

the HCQIA reasonableness standard does not even apply to Dr.

Freilich’s own conduct. Rather, it is a standard that a peer review

body must meet in order to obtain immunity for its actions. 

And the HCQIA’s objective reasonableness standard is a perfectly

valid guide for peer review bodies. The "reasonable belief" standard

embodies the discretion that health care professionals have traditionally exercised in determining whether or not their peers meet a requisite level of professional competence. See, e.g., Doyle v. Bowen, 660

F. Supp. 1484 (D. Me. 1987), vacated on other grounds, 848 F.2d 296

(1st Cir. 1988). Courts respect this discretion because "[a]ny attempt

FREILICH v. UPPER CHESAPEAKE HEALTH 7
to catalog every medical practice that would fall into the prohibited

category would result in the sort of encyclopedic and unwieldy statute

[already] rejected as unnecessary." Id. at 1493. See also, Assoc. of

Am. Physicians and Surgeons v. Weinberger, 395 F. Supp. 125, 138

(N.D. Ill. 1975) (noting the difficult task of "drafting [a] . . . statute

with sufficient specificity to give the physicians, practitioners and

providers of health care service adequate notice of the new requirements of the law and at the same time to maintain enough flexibility

to cover a variety of medical cases"). 

Furthermore, reasonableness standards have been consistently

upheld in the context of qualified immunity. See, e.g., Trulock v.

Freeh, 275 F.3d 391, 399 (4th Cir. 2001) ("Qualified immunity

shields government officials from civil liability ‘insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.’") (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In cases brought

under 42 U.S.C. § 1983, courts commonly apply an objective reasonableness standard to afford public officers sufficient latitude to properly perform discretionary functions. See, e.g., Gooden v. Howard

County, 954 F.2d 960, 964 (4th Cir. 1992) (en banc). We therefore

hold that the HCQIA reasonableness standard provides sufficient

guidance to withstand a vagueness challenge. 

C.

Dr. Freilich next alleges that the HCQIA violates the Tenth

Amendment of the United States Constitution and Article Three of the

Maryland Declaration of Rights by "invad[ing] subjects traditionally

governed by state law," and by "attempting to immunize conduct

otherwise actionable under state law."2

The Tenth Amendment provides that "[t]he powers not delegated

to the United States by the Constitution, nor prohibited by it to the

States, are reserved to the States respectively, or to the people." U.S.

Const. amend. X. A Tenth Amendment inquiry consists of two parts.

2We construe "guarantees in the Declaration of Rights to be in pari

materia with similar provisions of the federal constitution." Patterson v.

Maryland, 741 A.2d 1119, 1128 (Ct. App. Md. 1999). 

8 FREILICH v. UPPER CHESAPEAKE HEALTH
First we must determine whether Congress has the constitutional

power to enact the HCQIA. United States v. Johnson, 114 F.3d 476,

480 (4th Cir. 1997) (citing New York v. United States, 505 U.S. 144

(1992)). If we answer this inquiry in the affirmative, we then ask

whether the means of regulation employed by Congress impermissibly infringe upon state sovereignty. Id.

Congress has the power under the Commerce Clause to enact statutes governing physician peer review. Hospitals are regularly engaged

in interstate commerce, performing services for out-of-state patients

and generating revenues from out-of-state sources. Summit Health,

Ltd. v. Pinhas, 500 U.S. 322, 329-30 (1991). And the Supreme Court

has already held that because "[r]eports concerning peer review proceedings are routinely distributed across state lines and affect doctors’

employment opportunities throughout the Nation," there is "no doubt

concerning the power of Congress to regulate a peer review process."

Id. at 327-28, 332. 

Having found that Congress has the power to enact the HCQIA, we

now ask whether the means employed infringe upon state sovereignty.

Johnson, 114 F.3d at 480. We hold that they do not. The HCQIA does

not commandeer the state legislature or executive. "It does not require

. . . [the Maryland Legislature] to enact any laws or regulations, and

it does not require state officials to assist in the enforcement of federal

statutes regulating private individuals." Reno v. Condon, 528 U.S.

141, 151 (2000). The HCQIA does not compel states to implement a

federal regulatory program either. Under the HCQIA, health care providers are required to collect and report information to the State

Board of Medical Examiners. See 42 U.S.C. § 11133(a). The State

Board of Medical Examiners then forwards that information to a federal data bank. But more is required than the expenditure of time and

effort on the part of state officials in order to offend the Tenth

Amendment. See Condon, 528 U.S. at 150. "Any federal regulation

demands compliance. That a State wishing to engage in certain activity must take administrative and sometimes legislative action to comply with federal standards regulating that activity is a commonplace

that presents no constitutional defect." South Carolina v. Baker, 485

U.S. 505, 514-15 (1988). 

All that the HCQIA requires of states is the forwarding of information. And the HCQIA specifically provides that "nothing in this part

FREILICH v. UPPER CHESAPEAKE HEALTH 9
shall be construed as changing the liabilities or immunities under law

or as preempting or overriding any State law which provides incentives, immunities, or protection for those engaged in a professional

review action that is in addition to or greater than that provided by

this part." 42 U.S.C. § 11115. We thus agree with the district court’s

conclusion that the HCQIA "does not require the state to do anything

that the state itself has not already required, authorized, or provided

by its own legislative command." Freilich, 142 F. Supp. 2d at 696.

In sum, the HCQIA does not come close to offending the Tenth

Amendment. 

III.

We next turn to Dr. Freilich’s claims against the hospital under

Titles II and III of the Americans with Disabilities Act (ADA) and

under the Rehabilitation Act (RA).3 To the extent possible, we construe similar provisions in the two statutes consistently. See Ennis v.

Nat’l Ass’n of Bus. and Educ. Radio, Inc., 53 F.3d 55, 57 (4th Cir.

1995). Dr. Freilich makes three claims, which we address in turn. 

A.

Dr. Freilich brings her first ADA claim on behalf of her dialysis

patients. Dr. Freilich alleges that HMH violated the ADA and the RA

by providing in-hospital quality assurance and oversight for all hospital services provided by contractors except for dialysis services. See

3Dr. Freilich also brings a section 1983 claim against the hospital

defendants based on their decision to terminate her hospital privileges.

The hospital defendants are all private actors. Therefore in order to properly bring a section 1983 claim against them, Dr. Freilich must not only

demonstrate that a constitutional violation occurred, but must also show

that their actions can be properly characterized as those of the state.

American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999). The

Maryland credentialing statute and regulation both require hospitals to

establish a formal reappointment process. But the State plays no role

whatsoever in the actual decision as to whether or not to terminate or

reappoint any particular physician. Because the private hospital defendants cannot properly be considered state actors, Dr. Freilich’s section

1983 claim is dismissed. 

10 FREILICH v. UPPER CHESAPEAKE HEALTH
42 U.S.C. §§ 12132, 12182; 29 U.S.C. § 794. Quality assurance and

oversight for dialysis services is provided by an outside contractor.

We do not reach the merits of this claim, however, because Dr.

Freilich lacks standing to bring such a claim on behalf of her patients.

Our standing inquiry "involves both constitutional limitations on

federal-court jurisdiction and prudential limitations on its exercise."

Warth v. Seldin, 422 U.S. 490, 498 (1975). Even if a plaintiff satisfies

Article III standing requirements, "[f]ederal courts must hesitate

before resolving a controversy, even one within their constitutional

power to resolve, on the basis of the rights of third persons not parties

to the litigation." Singleton v. Wulff, 428 U.S. 106, 113 (1976). To

overcome the prudential limitation on third-party standing, a plaintiff

must demonstrate: (1) an injury-in-fact; (2) a close relationship

between herself and the person whose right she seeks to assert; and

(3) a hindrance to the third party’s ability to protect his or her own

interests. Powers v. Ohio, 499 U.S. 400, 410-11 (1991). 

The district court held that even assuming the existence of the first

two elements, Dr. Freilich did not sufficiently allege a hindrance to

her patients’ ability to protect their own interests. Freilich, 142 F.

Supp. 2d at 699. Here Dr. Freilich fails to allege sufficient obstacles

to the patients bringing suit themselves. The district court correctly

pointed out that "the dialysis patients and indigent patients on whose

behalf Dr. Freilich advocated are not constrained in bringing suit by

any obstacles made known in the Complaint." Freilich, 142 F. Supp.

2d at 699. In her submission to this court, Dr. Freilich argues that

dialysis patients are disabled and chronically ill, foreclosing them

from presenting their own rights. But we cannot simply assume that

every disabled or chronically ill person is incapable of asserting his

or her own claims. In fact, such persons are typical and frequent

plaintiffs under both the ADA and RA. Faced, then, with no evidence

that Dr. Freilich’s dialysis patients are hindered from presenting their

own claims, we adhere to the longstanding principle that "third parties

themselves usually will be the best proponents of their own rights."

Singleton, 428 U.S. at 114. 

B.

Next, Dr. Freilich asserts a claim of associational discrimination

under the ADA. See 42 U.S.C. § 12182(b)(1)(E). Dr. Freilich alleges

FREILICH v. UPPER CHESAPEAKE HEALTH 11
that HMH denied her reappointment because of her "patient advocacy." Under Title III of the ADA, 42 U.S.C. § 12182(b)(1)(E), it is

discriminatory to "exclude or otherwise deny equal goods, services,

facilities, privileges, advantages, accommodations, or other opportunities to an individual or entity because of the known disability of an

individual with whom the individual or entity is known to have a relationship or association." There is little case law applying this provision. We therefore look for guidance from a similar provision in Title

I of the ADA which governs associational discrimination in employment. See 42 U.S.C. § 12112(b)(4). 

The associational discrimination provision in Title I "was intended

to protect qualified individuals from adverse job actions based on

‘unfounded stereotypes and assumptions’ arising from the employees’

relationships with particular disabled persons." Oliveras-Sifre v.

Puerto Rico Dept. of Health, 214 F.3d 23, 26 (1st Cir. 2000) (citing

Barker v. Int’l Paper Co., 993 F. Supp. 10, 15 (D. Me. 1998)). In

Oliveras-Sifre, the plaintiffs alleged that they were punished for their

advocacy on behalf of AIDS patients. However, the First Circuit

rejected the plaintiffs’ contention that the defendants’ actions violated

the associational discrimination provision of the ADA. The plaintiffs

did not allege "a specific association with a disabled individual."

Instead, they "contend[ed], in essence, that they were punished for

their advocacy on behalf of individuals with AIDS." Id. In Barker, the

court granted summary judgment in favor of the defendants along the

same lines: the plaintiff alleged that he was terminated because of his

advocacy on behalf of the plaintiff’s disabled wife, which was held

insufficient to support an associational discrimination claim. 993 F.

Supp. at 15. 

Dr. Freilich’s allegations suffer from similar defects as the allegations in Oliveras-Sifre and Barker. Dr. Freilich alleges that HMH "coerced, intimidated, threatened, or interfered . . . with [her] because she

exercised rights protected by the ADA," and that HMH discriminated

against her because she refused "to end her advocacy of the dialysis

patients’ rights that were being violated under [the] ADA." She further alleges that she was "denied equal use of facilities, privileges,

advantages or other opportunities because of her association with and

her relationship to patients with disabilities." But such generalized

references to association with disabled persons or to advocacy for a

12 FREILICH v. UPPER CHESAPEAKE HEALTH
group of disabled persons are not sufficient to state a claim for associational discrimination under the ADA. Every hospital employee can

allege at least a loose association with disabled patients. To allow Dr.

Freilich to proceed on such a basis would arm every hospital

employee with a potential ADA complaint. A step of that magnitude

is for Congress, not this court, to take. 

C.

Finally, Dr. Freilich brings a claim for retaliatory discharge under

the ADA and the RA. She alleges that HMH terminated her hospital

privileges "because she strongly opposed and voiced her concerns

about HMH’s practices in treating dialysis patients." Specifically, Dr.

Freilich contends that her opposition to HMH’s decision to outsource

quality oversight and quality assurance over dialysis services constitutes protected conduct under the ADA. Under 42 U.S.C. § 12203,

"[n]o person shall discriminate against any individual because such

individual has opposed any act or practice made unlawful by this

chapter or because such individual made a charge, testified, assisted,

or participated in any manner in an investigation, proceeding, or hearing under this chapter." (emphasis added). In order to establish a

prima facie case of retaliation, a plaintiff must allege (1) that she has

engaged in conduct protected by the ADA; (2) that she suffered an

adverse action subsequent to engaging in the protected conduct; and

(3) that there was a causal link between the protected activity and the

adverse action. Rhoads v. FDIC, 257 F.3d 373, 392 (4th Cir. 2001).

In reviewing retaliation claims, courts recognize the need to balance

the desire to encourage employees to oppose unlawful discrimination,

with "an employer’s interest in maintaining a harmonious, productive

and loyal workforce." Fitch v. Solipsys Corp., 94 F. Supp. 2d 670,

678 (D. Md. 2000). 

A plaintiff need not establish that the conduct she opposed actually

constituted an ADA violation. Ross v. Communications Satellite

Corp., 759 F.2d 355, 357 n.1 (4th Cir. 1985). But a complainant must

allege the predicate for a reasonable, good faith belief that the behavior she is opposing violates the ADA. E.g., Weissman v. Dawn Joy

Fashions, Inc., 214 F.3d 224, 234 (2nd Cir. 2000). 

FREILICH v. UPPER CHESAPEAKE HEALTH 13
In her complaint, Dr. Freilich alleges what at most are violations

of state medical malpractice law, not infractions of the ADA. Dr.

Freilich says that she complained orally and/or in writing regarding

the failure to transport a patient in a timely manner; the failure to

adhere to skin protocols; the failure to address concerns regarding

uncertified nurses; the failure to diagnose a cervical fracture on a

patient; the unsupervised dialysis of a patient; and the failure to provide correct dialysis services for several patients. While we do not

overlook the importance of maintaining adequate levels of patient

care, it is not the job of a federal court under the ADA to referee disagreements between a hospital and staff physician over what constitutes the appropriate funding or manner of such care. In essence, Dr.

Freilich disagrees with the level of care being provided to some hospital patients, which she attributes to the outsourcing of quality assurance and quality oversight for dialysis patients.4

 She could not,

however, reasonably believe that her disagreement with HMH over

the expenditure of hospital resources constituted a violation of the

ADA. 

Every disagreement over the adequacy of hospital expenditures or

the provision of patient care is not an ADA issue. If it were, courts

would be drawn into medical resource disputes quite beyond their

expertise and hospital personnel would be diverted by litigation from

their primary task of providing medical attention to those in their

charge. Hospitals are in the business of serving persons with many

kinds of disabilities, and we have noted that "our federal disability

statutes are not designed to ensure that persons with one type of disability are treated the same as persons with another type of disability."

Lewis v. Kmart Corp., 180 F.3d 166, 171-72 (4th Cir. 1999). Recognizing that the medical community is best equipped to conduct the

balancing that medical resource allocations inevitably require, Congress declined to give courts a mandate to arbitrate such disputes. 

4

It is not even clear that the provision of in-house quality assurance

and quality oversight is a good, service, or advantage under the ADA.

Rather, as the district court noted, quality assurance and oversight

"seems more to be a service rendered to the hospital and practitioners."

Freilich, 142 F. Supp. 2d at 702. 

14 FREILICH v. UPPER CHESAPEAKE HEALTH
Because Dr. Freilich has failed to allege any set of facts supporting

her claim that she opposed practices made unlawful by the ADA, we

affirm the district court’s dismissal of her retaliation claim. 

IV.

We turn finally to Dr. Freilich’s due process challenge to the Maryland statute and regulation which govern the credentialing process. 

Maryland Code Health-General Article § 19-319(e) governs the

hospital credentialing process for physicians. Under the statute, hospitals must establish a credentialing process for physicians who are

employed by or have staff privileges at the hospital. The statute further requires the Secretary of Health and Mental Hygiene to establish

minimum standards for a credentialing process, which must include,

among other things, a formal, written reappointment process to be

conducted at least every two years. The reappointment process must

document the physicians’ pattern of performance by "analyzing

claims filed against the physician, data dealing with utilization, quality, and risk, a review of clinical skills, adherence to hospital bylaws,

policies and procedures, compliance with continuing education

requirements, and mental and physical status." Id.

Pursuant to § 19-319(e), COMAR § 10.07.01.24(E) requires each

hospital in the state of Maryland to establish a process for the reappointment of physicians. As part of the reappointment process, hospitals must "collect, verify, review, and document" the physicians’

pattern of performance based on an analysis of the following: "(i)

claims filed against the physician; (ii) utilization, quality and risk

data; (iii) a review of clinical skills; (iv) adherence to hospital bylaws,

policies, and procedures; (v) compliance with continuing medical

education requirements; (vi) an assessment of current mental and

physical health status; and (vii) attitudes, cooperation, and ability to

work with others." Id.

Dr. Freilich alleges that Maryland’s credentialing regulation,

COMAR § 10.07.01.24(E), violates due process. Specifically, Dr.

Freilich alleges that she was deprived of "her liberty to practice her

chosen profession in the locale where she has practiced for 18 years"

because "Health-General Article, § 19-319 and the COMAR regulaFREILICH v. UPPER CHESAPEAKE HEALTH 15
tion § 10.07.01.24(E) permit Hospital administrators to deny hospital

privileges based solely upon the vague, ambiguous, and subjective

‘attitude’ criterion." 

The statute and regulation will survive a vagueness challenge so

long as each provides physicians with reasonable notice as to the type

of conduct that may cause a denial of their hospital privileges. See

Village of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S.

489, 498-99 (1982). As we pointed out earlier, a provision cannot particularize every different set of facts and circumstances that might

lead a peer review committee to conclude that a physician’s privileges

should be terminated. Hospitals have historically had wide discretion

to make decisions regarding their medical staff. See, e.g., Glass v.

Doctors Hosp., Inc., 131 A.2d 254 (Md. 1957). "The governing board

of a hospital must[ ] be given great latitude in prescribing the necessary qualifications for potential applicants." Woodbury v. McKinnon,

447 F.2d 839, 845 (5th Cir. 1971). This includes the consideration of

factors beyond technical medical skills. Schlein v. Milford Hosp., 423

F. Supp. 541, 544 (D. Conn. 1976) ("Due process does not limit the

hospital’s consideration to technical medical skills."). 

Dr. Freilich’s vagueness argument would lead the uninformed

observer to believe that a Maryland hospital can terminate a physician’s privileges solely on a subjective determination that the physician had a bad attitude. This is untrue. Dr. Freilich ignores the fact

that the COMAR regulation requires hospitals to assess a physician’s

pattern of performance based upon seven separate factors. The regulation does not authorize or encourage private "hospitals to terminate a

physician’s privileges solely because of his/her ‘[a]ttitudes, cooperation, and ability to work with others.’" Complaint ¶ 89. By its own

terms, the regulation requires hospitals to employ a broad based, formal written reappointment process that considers numerous criteria.

COMAR § 10.07.01.24(E)(3)(b). 

Furthermore, most courts that have considered the use of criteria

such as attitude and cooperation in a hospital’s reappointment decisions have refused to interfere with the discretion given to hospitals

over substantive credentialing decisions, so long as those criteria are

not applied arbitrarily. For example, in Sosa v. Board of Managers of

the Val Verde Memorial Hospital, 437 F.2d 173 (5th Cir. 1971), the

16 FREILICH v. UPPER CHESAPEAKE HEALTH
Fifth Circuit considered a constitutional challenge to the Val Verde

Memorial Hospital Credential Committee’s use of "character, qualifications, and standing" in reviewing applicants seeking admission to

the hospital medical staff. Id. at 176 (internal citation omitted). The

court admitted that "standards such as ‘character, qualifications, and

standing’ are very general, but . . . recognize[d] that in the area of personal fitness for medical staff privileges precise standards are difficult

if not impossible to articulate. The subjectives of selection simply

cannot be minutely codified. The governing board of a hospital must

therefore be given great latitude in prescribing the necessary qualifications for potential applicants." Id. Because "[n]o court should substitute its evaluation of . . . [professional competency] for that of the

Hospital Board," our review is limited to "assuring that the qualifications imposed by the Board are reasonably related to the operation of

the hospital and fairly administered." Id. at 177. 

The Fifth Circuit is hardly alone in its view. Courts across the

country have upheld bylaws employing similar factors as Maryland’s

regulation. Freilich, 142 F. Supp. 2d at 689. In Yashon v. Hunt, 825

F.2d 1016 (6th Cir. 1987), the Sixth Circuit held that "a physician’s

unprofessional conduct, incompatibility and lack of cooperation on a

hospital staff are appropriate considerations for denying staff privileges." Id. at 1027 (citing Stretten v. Wadsworth Veterans Hosp., 537

F.2d 361, 368 (9th Cir. 1976)). See also Mahmoodian v. United Hosp.

Center, Inc., 404 S.E.2d 750, 758 (W. Va. 1991) (finding "an ability

to work with others" a "reasonably definite standard proscribing the

conduct upon which the [clinical privileges] revocation or other

adverse action is based"). Today’s health care environment has

become increasingly complex. As Dr. Freilich’s complaint itself demonstrates, the operation of a hospital requires the coordination of

numerous employees and departments, each with different responsibilities that build and depend upon each other. Thus, staff cooperation

and communication are essential to ensuring a high quality of patient

care. Disruptive behavior in the workplace can not only affect the

morale and teamwork of the staff itself, but in so doing cause actual

harm to patients. A hospital’s evaluation of a physician’s attitude and

ability to work with others is not unduly vague and is directly related

to the goal of good patient care. Accordingly, we reject Dr. Freilich’s

challenge to Maryland’s physician credentialing system. 

FREILICH v. UPPER CHESAPEAKE HEALTH 17
V.

Dr. Freilich’s complaint invites courts to enmesh themselves in

hospital governance. Both Congress and the Maryland legislature

have proceeded in precisely the opposite direction, affording hospital

authorities both the discretion and the protection to discharge their

assigned tasks. We decline to interfere with these legislative judgments and affirm the judgment of the district court dismissing plaintiff’s claims. 

AFFIRMED

18 FREILICH v. UPPER CHESAPEAKE HEALTH