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. e du/thir dc ir c uit_1996/156UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

Nos. 95-1391, 95-1392,
95-1532 and 95-1548

___________

ROBERT S. MATHEWS, M.D., Appellant at No. 95-1391

v.

LANCASTER GENERAL HOSPITAL;

LANCASTER GENERAL HOSPITAL FOUNDATION ; COLUMBIA HOSPITAL; COLUMBIA HOSPITAL FOUND ATION; GERALD W. ROTHACKER, JR., M.D.; THOMAS R. WESTP HAL, M.D.; JOHN SHERTZER, M.D.; J. PAUL LYET, M.D .; JAMES P. ARGIRES, M.D.; HUGH H. HOKE, JR., M.D.

ROBERT S. MATHEWS, M.D., Appellant at No. 95-1392

v.

ORTHOPEDIC ASSOCIATES OF LANCASTER, LT D.

ROBERT S. MATHEWS, M.D.

v.

LANCASTER GENERAL HOSPITAL;

LANCASTER GENERAL HOSPITAL FOUNDATION ; COLUMBIA HOSPITAL; COLUMBIA HOSPITAL FOUND ATION; GERALD W. ROTHACKER, JR., M.D.; THOMAS R. WESTP HAL, M.D.; JOHN SHERTZER, M.D.; J. PAUL LYET, M.D .; JAMES P. ARGIRES, M.D.; HUGH H. HOKE, JR., M.D.

Lancaster General H ospital,

Gerald W. Rothacker , Jr., M.D., Thomas R. Westphal, M.D., John H. Shertzer, M .D., J. Paul Lyet, M.D., James P. Argires, M .D. and Hugh H. Hoke, J r., M.D., Appellants at N o. 95-1532ROBERT S. MATHEWS, M.D.

v.

ORTHOPEDIC ASSOCIATES OF LANCASTER, LTD ., Appellant at No . 95-1548

__________________________________________ _____

On Appeal from the United States District Court for the Eastern District of Pennsylvan ia (D.C. Civil Action Nos. 93-cv-06774 and 94-c v-04647)

___________________

Argued January 10, 1996

Before: SCIRICA, ALITO and WEIS, Circuit Judges

(Filed June 21, 1996)

JUDAH I. LABOVITZ, ESQUIRE (ARGUED) Mann, Ungar, Spector & Labovitz 1709 Spruce Street Philadelphia, Pennsylvania 19103

Attorney for Robert S. Mathews, M.D.

REEDER R. FOX, ESQUIRE (ARGUED) Duane, Morris & Heckscher 4200 One Liberty Place Philadelphia, Pennsylvania 19103-7396

Attorney for Lancaster General Hospital, Lancaster General Hospital Foundation, Gerald W. Rothacker, Jr., M.D. Thomas R. Westphal, M.D., John H. Shertzer, M.D., J. Paul Lyet, M.D., James P. Argires, M.D., and Hugh H. Hoke, Jr., M.D.

JONATHAN B. SPRAGUE, ESQUIRE (ARGUED)

Post & Schell 1800 JFK Boulevard, 19th Floor Philadelphia, Pennsylvania 19103Attorney for Columbia Hospital and

Columbia Hospital Foundation

JOHN G. HARKINS, JR., ESQUIRE (ARGUED) Harkins Cunningham 1800 One Commerce Square
2005 Market Street Philadelphia, Pennsylvania 19103-7042

Attorney for Orthopedic Associates of Lancaster, Ltd.

__________________

OPINION OF THE COURT

__________________

SCIRICA, Circuit Judge.

Dr. Robert Mathews brought suit against La ncaster General Hospital, Columbia Hospital, and several ph ysicians, alleging defendants conspired to curtail his profes sional privileges in violation of the Sherman Act and stat e law. The district court held all defendants except Columbia Hospital were immune from suit for monetary damages under the Hea lth Care Quality Improvement Act of 1986 (the "Act"), 42 U.S .C.  11101- 11152 (1988 & Supp. IV 1992). It also found that D r. Mathews failed to produce evidence of concerted action and antitrust injury. The district court entered summary judgmen t against Dr. Mathews on his antitrust claims and dismissed his p endant state law claims. See Opinion and Order, Mathews v. Lanc aster Gen. Hosp., Nos. 93-6774, 94-4647 (E.D. Pa. May 4, 1995)

. Dr. Mathews appeals the grant of immunity, and defendants cross-appeal the denial of their motion for attorneys' fees. The Act requires that "a professional review action be
taken in the reasonable belief that the action was in furtherance of quality health care" for immunity to attach. 42 U.S.C.  11112(a)(1). Because the evidence in this case sup ports the conclusion that defendants possessed a reasonable b elief that their action was in furtherance of quality health c are, we believe the district court correctly found them to be immune from suit. We also hold that the award of attorneys' fe es to prevailing defendants under the Act lies in the dis cretion of the
district court. Dr. Mathews also challenges the district c ourt's grant of summary judgment on the antitrust claims. We be lieve Dr. Mathews has failed to raise a genuine issue of mate rial fact as to whether defendants engaged in concerted action i n restraint of
trade. Nor has he shown the existence of an antitr ust injury.
We will affirm. I. Factual BackgroundDr. Robert Mathews is an orthopedic surgeo n who has

been on the staff of Lancaster General Hospital ("L ancaster General") since 1973 and Columbia Hospital ("Columb ia") since 1992. He practices as a corporate partner with ano ther orthopedic surgeon, Dr. George Kent. Lancaster Gen eral, Columbia, and affiliated corporate entities, the La ncaster General Hospital Foundation and the Columbia Hospit al Foundation,
are defendants in this antitrust suit. Also defend ants are Orthopedics Associates of Lancaster, Ltd. ("Orthope dic Associates"), an orthopedic surgery group practice in competition with Dr. Mathews' practice, and several doctors, in cluding Drs. Gerald Rothacker, Jr., Thomas Westphal, and John Sh ertzer, all orthopedic surgeons and shareholders of Orthopedic Associates. Dr. Mathews alleges that Lancaster General, Columbi a, Orthopedic Associates, and the individual defendants engaged i n an antitrust conspiracy to curtail his orthopedics practice and his privileges at Lancaster General by improperly sanctioning him in a peer review proceeding. He alleges that Dr. J. Paul Lye t, another orthopedic surgeon, Dr. James Argires, a neurosurge on and a member of the Lancaster General Hospital Board of D irectors, and Dr. Hugh Hoke, a former President of the Medical an d Dental Staff of Lancaster General Hospital and ex-officio member of the Lancaster General Hospital Board, also participated in the conspiracy. The chain of events that precipitated this lawsuit began on December 27, 1989. That morning, Dr. Kent was performing spinal surgery at Lancaster General. Dr . Mathews was listed as a co-surgeon for the operation. During t he procedure, a high speed drill slipped and tore the patient's e sophagus. Dr. Kent attempted to repair the esophagus himself with out seeking
outside assistance or a consultation. Dr. Mathews was not present in the operating room when the esophagus wa s injured. Later that evening, the patient suffered complicati ons necessitating emergency surgery to repair the tear. After the accident, Dr. Kent's hospital pr ivileges were suspended for five days while an ad hoc committee, chaired by Dr. Hoke and composed of several other Lancaster Genera l physicians (the "Hoke Committee"), investigated. The Hoke Com mittee concluded that Dr. Kent had acted inappropriately b y failing to seek a consultation on the patient's torn esophagus . In a report dated January 4, 1990, the Hoke Committee recommend ed a focused review of Dr. Kent's cases for a prospective six mo nth period by the Quality Assurance Committee of the Department o f Surgery and urged that letters of reprimand be placed in the co nfidential files of both Drs. Kent and Mathews. The report co ncluded that Dr. Mathews, as co-surgeon, bore some responsibilit y for the
incident.
In accordance with the Hoke Committee's re commendation, Dr. Robert Johnson, the President of the Medical an d Dental Staff, authorized a second ad hoc committee of thre e boardcertified orthopedic surgeons to conduct the six-mo nth focused
review of Dr. Kent's cases. The committee was sele cted by Dr. Rothacker, Chairman of the Department of Surgery at Lancaster General, and consisted of Drs. Rothacker, Westphal and Lyet (the"Rothacker Committee"). The parties dispute why th e focused

review was not undertaken by the Quality Assurance Committee as
the Hoke Committee had recommended. Drs. Rothacker and Westphal are both shareholders of Orthopedic Associates and economic competitors of Dr. Mathews. The Rothacker Committee reviewed 208 surgi cal cases in which Dr. Kent served as either the primary or assi sting surgeon. Apparently Dr. Rothacker played the most important role in the review. At the end of the review which took two ye ars, the
committee concluded that 27 of the 208 cases eviden ced a substandard level of care. Twenty-three of those c ases, the committee discovered, involved spine surgery, and D r. Mathews had been the primary surgeon in each of those cases. D r. Rothacker reported the findings of the committee to Dr. Johns on in a March 19, 1992 letter. In the letter, Dr. Rothacker reco mmended that the 27 files rated substandard by the committee be sent to an outside agency for further review, and "[i]f this a gency agrees that these cases were not managed in an acceptable fashion, a restriction of privileges would be indicated." Bot h Dr. Kent and Dr. Mathews were sent copies of the letter. Dr. Ro thacker also reported the conclusions of his committee to the Ex ecutive Committee of the Medical and Dental Staff on April 6, 1992, although he did not provide the Executive Committee with any underlying materials or with the Hoke Committee rep ort. Subsequently, in a letter dated April 30, 1992, Dr. Johnson informed Dr. Mathews that an independent reviewer w ould evaluate

both Dr. Mathews' and Dr. Kent's cases. Attached t o this letter was a copy of the minutes of the April 6, 1992 meet ing of the Executive Committee, which stated in part: In a significant number of these cases [of Dr. Kent], Dr. Robert Mathews was also involved in the surgery, as primary or assistant surgeon. Therefore, any review by an outside review agency will also involve a review [of] Dr. Mathews' performance in th ese cases, and may result in a recommendation regarding Dr. Mathews' clinical privileges

. At the time he was conducting the review o f Dr. Kent's cases, Dr. Rothacker was also concerned about econo mic trends affecting the medical profession. In a November 19 91 letter to the Lancaster General Hospital Foundation Board, Dr . Rothacker wrote: "The economic climate for medical practice, as you know, is not favorable at this time. Most of us anticipa te a significant drop in our gross earning ability and m ost likely our net earning ability." In January 1993, in order to respond to negative economic trends, Orthopedic Associates, of which Dr. Rothacker was a principal, and Lancaster General fo rmed a joint venture--the MidAtlantic Orthopedic Institute. The Institute was intended "to develop, operate and market a comprehe nsive orthopedic care and orthopedic surgical services pr ogram, through [Lancaster General]." Orthopedic Associates was to be the exclusive provider of orthopedic surgical services at the Institute, and Lancaster General agreed to dedicate operating room time and support personnel to Orthopedic Assoc iates. Dr.Mathews was a major user of operating room time at Lancaster

General. Meanwhile, Lancaster General had retained the American Medico-Legal Foundation to select an independent re viewer to
review the 27 cases in which the Rothacker Committe e had found that Drs. Kent and Mathews had provided substandard care. The Foundation chose Philip D. Wilson, Jr., M.D., of Co rnell Medical College. Dr. Wilson is a board certified orthopedi c surgeon who has taught in the field of orthopedic surgery for o ver 40 years. Drs. Kent and Mathews were given an opportunity to submit additional information regarding the files to be se nt to the independent reviewer, and both submitted some suppl ementary materials. On March 18, 1993, Dr. Wilson issued a report concluding the quality of care rendered by Drs. Ken t and Mathews was inadequate and below acceptable standards. Dr. Wilson's report concluded: the pattern and trend of care reflected by review of the records of the 23 patients undergoing lumbar spinal surgery by these two surgeons in a period of 6 months are substandard in the following ways:

(1) Incredibly poor documentation of pati ent work-ups lacking clear definition of prima ry complaints, clear histories of present illnesses, well recorded past medical histories, complete and orderly specific orthopedic and neurological examinations, and specifics of prior ambulatory care and

treatments.

(2) Lack of timely review, editing and correction of dictated and typed office

notes.

(3) Lack of timely signature to authorize

such notes.

(4) Poor use of consultants such as neurologists, neurosurgeons, and/or electroneurodiagnosticians.

(5) Great dependence on literal and non- objective interpretations of CAT scans
without direct clinical correlations for diagnosis.

(6) Failure to use alternative imaging techniques such as the full spectrum of routine x-rays, MRIs, and myelographic

enhanced CTs.

(7) Lack of judgment in applying extensiv e lumbar surgical decompressions and fusions topatients irrespective of age and type of

condition.

(8) Lack of well controlled ambulatory no n- operative techniques such as bracing, exercise therapy, pain blocks and physiotherapeutic modalities.

(9) Nonsystematic use of medications such as NSAIDs, muscle relaxants, analgesics, etc.

(10) Lack of objective hospitalization progress notes recording such details as progress of wound, recovery milestones, et c.

(11) The lack of a concise but descriptive discharge note with details of course as w ell as diagnoses, operative procedures and complications.

(12) Deficient operative notes without details of intraoperative findings and annotated justification for widespread and radical decompressive and stabilization procedures.

(13) Lack of understanding of principles f or suitable internal fixation of the spine.

(14) Lack of observing suitable principles for optimal results from spinal arthrodesi s grafting techniques. Dr. Wilson recommended that both doctors' privilege s to perform spine surgery be restricted until they were able to "demonstrate a renewed and updated understanding of present day principles and practice of this type of surgery." By letter dated May 10, 1993,
Dr. Mathews was advised of Dr. Wilson's conclusions and furnished with a copy of his peer review report. The letter warned that any restriction of privileges would be reported to the National
Practitioner Data Bank. In July 1993, Dr. Mathews was negotiating with Lancaster General over the possible sale of a prope rty adjacent
to Lancaster General in which he held an interest. He sought to link those negotiations to the hospital's proposed actions regarding his privileges. Dr. Mathews believed an understanding
had been reached with Lancaster General that he wou ld sell the property and voluntarily cease to perform spine sur gery, and Lancaster General would not submit an adverse repor t to the
National Practitioner Data Bank. In accordance wit h his understanding, Dr. Mathews voluntarily did not requ est privileges for spine surgery in his 1994-95 staff privileges a pplication to Lancaster General, submitted on July 29, 1993. But on August 27, 1993, Dr. Hoke wrote to Dr. Mathews rejecting the l inkage of the sale of property and Dr. Mathews' staff privileges.On September 16, 1993, the Lancaster Gener al Hospital

Board of Directors voted to restrict Dr. Mathews' p rivileges to perform spine surgery as either primary or assistin g surgeon. They also voted to require Dr. Mathews to obtain a second opinion or consultation before performing prosthetic joint surgery, arthroscopy, or hand or foot surgery for a period o f 12 months. Dr. Shertzer (a partner in Orthopedic Associates), Dr. Argires, and Dr. Hoke abstained from voting, although they w ere members of
the Board. The Board notified Dr. Mathews of its d ecision by letter dated September 22, 1993 and informed him of his right to a fair hearing under Lancaster General Hospital Med ical Staff Bylaws. On October 26, 1993, Dr. Mathews requested a hearing, and the Board subsequently voted to suspend the res trictions on his privileges until a hearing could be held. Befo re the hearing was scheduled, however, Dr. Mathews filed this suit

. During this course of events, Dr. Mathews also applied for staff privileges at Columbia Hospital. Columbi a granted Dr. Mathews "temporary privileges" in the Division of S urgery, Orthopedics, effective April 22, 1992. Later that year, Dr. Mathews was granted "provisional courtesy privilege s" for a period of twelve months. Near the end of that peri od, on August 25, 1993, Columbia's Credentials Committee recommen ded that Dr. Mathews' privileges be upgraded to "courtesy privil eges," and Columbia upgraded Dr. Mathews' status the next mont h. Dr. Mathews submitted a reappointment application to ha ve his privileges at Columbia renewed for the year beginni ng January 1, 1994, but in the course of reviewing Dr. Mathews' a pplication, Mr. Robert Katana, President and CEO of Columbia Ho spital, discovered the application did not contain a reappo intment reference from Lancaster General. Columbia require s all staff physicians to submit a reappointment reference from any other hospital where they exercise privileges, and Mr. Ka tana requested

such a reference from Dr. Mathews. Dr. Mathews nev er submitted the reappointment reference from Lancaster General, and his courtesy staff privileges at Columbia expired on De cember 31, 1993. Thereafter, Columbia granted Dr. Mathews "te mporary privileges." In September 1993, at the time Mr. Ka tana was considering Dr. Mathews' application for an extensi on of privileges, Lancaster General was in the process of negotiating a merger with Columbia Hospital. II. Procedural History Dr. Mathews brought suit against Lancaster General Hospital, Columbia Hospital, and various staff memb ers of Lancaster General on December 15, 1993, and against Orthopedic Associates of Lancaster, Ltd. on August 1, 1994. T he two cases were consolidated. The district court granted summ ary judgment to Lancaster General, Orthopedic Associates, and th e individual defendants on federal and state claims for monetary relief because it found they enjoyed immunity from monetar y damages

under  11111(a) of the Health Care Quality Improvement Ac t. The district court also granted summary judgment to all defendants, including Columbia, on Dr. Mathews' antitrust claim s, holding he had not produced evidence showing concerted action on the part of the defendants or an antitrust injury. The distric t courtentered summary judgment on Dr. Mathews' federal cl aims for

injunctive relief and dismissed without prejudice s tate claims for injunctive relief. See Opinion and Order, Math ews v. Lancaster Gen. Hosp., Nos. 93-6774, 94-4647 (E.D. P a. May 4, 1995) ("Opinion and Order"). Mathews appeals the d istrict court's grant of summary judgment. All defendants except Columbia appeal the district court's refusal to gra nt attorneys'

fees. We have jurisdiction under 28 U.S.C.  1291 to review
the district court's final order. Our review of th e district court's grant of summary judgment is plenary. Petr uzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2 d 1224, 1230 (3d Cir.), cert. denied sub nom. Moyer Packing Co. v. Petruzzi's IGA Supermarkets, Inc., 114 S. Ct. 554 (1993). III. The Health Care Quality Improvement Act This case arises under the Health Care Qua lity Improvement Act of 1986, 42 U.S.C.  11101-11152 (1988 & Supp. IV 1992). Congress passed the Act "to improve the quality of medical care by encouraging physicians to identify and discipline physicians who are incompetent or who engage in unp rofessional behavior." H.R. Rep. No. 903, 99th Cong., 2d Sess. 2 (1986), reprinted in 1986 U.S.C.C.A.N. 6287, 6384, 6384. C ongress believed incompetent physicians could be identified through "effective professional peer review," which it chos e to encourage by granting limited immunity from suits for money d amages to participants in professional peer review actions. 42 U.S.C.  11101(5), 11111(a). Congress also sought "to restr ict the ability of incompetent physicians to move from Stat e to State without disclosure or discovery of the physician's previous damaging or incompetent performance" by creating an obligation to report professional review sanctions to the Secreta ry of the Department of Health and Human Services. 42 U.S.C.  11101(2),
11134. The standards that a professional review a ction must satisfy in order to entitle participants in the rev iew process to immunity are set forth in 42 U.S.C.  11112(a) and include certain fairness and due process requirements. For immunity to attach, the results of the action must be reported to the State Board of Medical Examiners in compliance with 42 U. S.C.  11133.
The Act was intended to deter antitrust su its by disciplined physicians. Congress believed "[t]he t hreat of private money damage liability under Federal laws, including treble damage liability under Federal antitrust law , unreasonably discourages physicians from participating in effect ive professional peer review." 42 U.S.C.  11101(4). The Act contains a fee shifting provision to discourage fri volous suits by physicians disciplined in peer review proceeding s. See 42

U.S.C.  11113. The Act includes a presumption that a prof essional review activity meets the standards for immunity, " unless the presumption is rebutted by a preponderance of the e vidence." 42

U.S.C.  11112(a). This presumption results in an "unusual standard" for reviewing summary judgment orders und er the Act. "In a sense, the presumption language in [the Healt h Care QualityImprovement Act] means that the plaintiff bears the burden of

proving that the peer review process was not reason able." Bryan v. James E. Holmes Regional Medical Ctr., 33 F.3d 1 318, 1333 (11th Cir. 1994) (emphasis in original), cert. deni ed, 115 S. Ct. 1363 (1995). "We must examine the record in this c ase to determine whether [Dr. Mathews] satisfied his burde n of producing evidence that would allow a reasonable jury to conc lude that the Hospital's peer review disciplinary process failed to meet the standards of the [Act]." Id. at 1334; see also Aus tin v. McNamara, 979 F.2d 728, 734 (9th Cir. 1992) (same).
A. Professional Review Actions under the Act

Dr. Mathews argues Lancaster General and d efendant physicians conducted at least two "professional rev iew actions" relating to him: first, the March 19, 1992 letter of Dr.
Rothacker on behalf of the Rothacker Committee reco mmending a focused review of his cases and a possible restrict ion of his privileges, and second, the September 16, 1993 vote by the Lancaster General Hospital Board of Directors to re voke his spine privileges. The Act defines a "professional review action" as: an action or recommendation of a professio nal review body which is taken or made in the conduct of professional review activity .

. . which affects (or may affect) adversely th e clinical privileges, or membership in a professional society, of a physician. Suc h term . . . also includes professional revi ew activities relating to a professional revi ew action.

42 U.S.C.  11151(9). Dr. Mathews contends that Dr. Rothacker 's March 19, 1992 letter constituted a professional re view action because it made a recommendation that had the poten tial to adversely affect his clinical privileges. He argue s the district court erred by not treating the Rothacker Committee 's letter as a professional review action and not assessing it for compliance with the fairness and procedural standards outlined in 42 U.S.C.

 11112(a). The district court, reading the definition s of "professional review action" and "professional revi ew activity" together, concluded that "the term `professional re view activity' refers to preliminary investigative measures taken in a `reasonable effort to obtain the facts' relevant to a possible change in a physician's privileges, while the term `professional

review action' refers to the decision that results from a review of the facts obtained." See Opinion and Order, sli p op. at 21.

It concluded Dr. Rothacker's letter was a part of the preliminary investigative process and therefore not a "professional review action." We agree with the di strict court's analysis. The definition of "professional review act ion" encompasses decisions or recommendations by peer re view bodies that directly curtail a physician's clinical privil eges or impose some lesser sanction that may eventually affect a p hysician'sprivileges. "Professional review actions" do not i nclude a

decision or recommendation to monitor the standard of care provided by a physician or factfinding to ascertain whether a physician has provided adequate care. These are "p rofessional review activities." See Fobbs v. Holy Cross Health Sys. Corp., 789 F. Supp. 1054, 1065 (E.D. Cal. 1992) ("[P]rofes sional review activity means the investigative process during and /or upon which a professional review action, i.e., a decision, is made."), aff'd, 29 F.3d 1439 (9th Cir. 1994), cert. denied, 115 S. Ct. 936 (1995). We believe Dr. Rothacker's March 12, 1992 letter was a part of ongoing professional review activities. It did not constitute a decision to restrict Dr. Mathews' priv ileges, nor did it recommend that Dr. Mathews' privileges be re stricted immediately. In fact, the letter did not impose an y penalty. Instead, it recommended further investigation and r eview by an outside agency before any limitations were placed o n Dr. Mathews' privileges. No professional review action occurred here until the Board's September 16, 1993 vote to suspend Dr. Math ews' privileges. See Austin v. McNamara, 979 F.2d at 73 6 ("no `action' was taken in this case until . . . the fir st occasion when [plaintiff's] clinical privileges were adverse ly affected. Prior to that time, he had been monitored and revie wed, but no professional review body had limited his clinical p rivileges or adopted a recommendation that they be limited."). Because Dr. Rothacker's March 19, 1992 letter was not a profess ional review action, the district court correctly held it did no t have to meet
the standards set forth in 42 U.S.C.  11112(a). B. Immunity under the Act Dr. Mathews contends summary judgment was inappropriate because there were disputed issues of fact as to wh ether the defendants met the standard for immunity set forth in 42 U.S.C.  11112(a). For immunity under  11111(a) to attach, four requirements must be met. 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 obta in the facts of the matter, (3) after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances, and (4) in the reasonable belief that the action was warranted by the facts known af ter
such reasonable effort to obtain facts and after meeting the requirement of paragraph (3).
42 U.S.C.  11112(a). We will undertake the inquiry mandated by

each of  11112(a)'s four prongs to determine whether the district court's grant of summary judgment on the b asis of immunity was proper.
1. Reasonable Belief that the Action was in theFurtherance of Quality Health Care

On appeal, Dr. Mathews argues he raised ma terial issues of fact as to whether participants in the peer revi ew proceedings
at Lancaster General acted "in the reasonable belie f that [a restriction of his privileges] was in the furtheran ce of quality health care," as is required under  11112(a)(1) of the Act. He
maintains that defendants were in direct economic c ompetition with him, which supports an inference of their bad faith. The
district court held that  11112(a)(1) mandates an objective standard, and "assertions of bad faith and anticomp etitive motive are irrelevant to the question of whether a decisio n was taken in a reasonable belief that it would further quality h ealth care." Opinion and Order, slip op. at 29-30. Other courts of appeals, in evaluating sum mary judgment orders granted on the basis of immunity, have unifo rmly applied an objective standard in assessing compliance with  11112(a). See Imperial v. Suburban Hosp. Ass'n, Inc., 37 F.3d 1026, 1030 (4th Cir. 1994) ("The standard is an objective one which looks to the totality of the circumstances."); Smith v. Rick s, 31 F.3d 1478, 1485 (9th Cir. 1994) ("the `reasonableness' r equirements of

 11112(a) were intended to create an objective stan dard, rather than a subjective standard"), cert. denied, 115 S. Ct. 1400 (1995). They have held that a defendant's subjecti ve bad faith
is irrelevant under  11112(a) and have upheld a finding of immunity if, on the basis of the record, the court could conclude that the professional review action would further q uality health care. See, e.g., Bryan v. James E. Holmes Regional Medical Ctr., 33 F.3d 1318, 1335 (11th Cir. 1994) (Plaintiff's "a ssertions of hostility do not support his position [that the hos pital is not entitled to the Act's protections] because they are irrelevant to

the reasonableness standards of  11112(a). The test is an objective one, so bad faith is immaterial. The rea l issue is the sufficiency of the basis for the [Hospital's] actio ns."), cert. denied, 115 S. Ct. 1363 (1995); Austin v. McNamara, 979 F.2d 728, 734 (9th Cir. 1992) (same); see also Opinion and Or der, slip op.
at 30. We agree with our sister circuits that  11112(a) imposes an objective standard. The House Committee on Energy and Commerce's report on the Act stated with regard to  11112(a)(1): Initially, the Committee considered a "goo d faith" standard for professional review actions. In response to concerns that "go od faith" might be misinterpreted as requirin g only a test of the subjective state of min d of the physicians conducting the professio nal review action, the Committee changed to a more objective "reasonable belief" standar d. H.R. Rep. No. 903, 99th Cong., 2d Sess. 10 (1986), reprinted in1986 U.S.C.C.A.N. at 6392-93. Although the quoted passa ge relates to a previous version of the Act and to  11112(a)(1) in particular, we believe that Congress' use of the wo rds
"reasonable belief" in both  11112(a)(1) and (4) indicates an intention to create an objective standard with rega rd to  11112(a) as a whole. Under  11112(a)(1), this standard "willbe satisfied if the reviewers, with the information available to

them at the time of the professional review action, would reasonably have concluded that their actions would restrict incompetent behavior or would protect patients." H .R. Rep. No. 903, 99th Cong., 2d Sess. 10 (1986), reprinted in 1 986
U.S.C.C.A.N. at 6393. The court should look to the totality of the circumstances. Imperial v. Suburban Hosp. Ass' n, Inc., 37
F.3d at 1030. Dr. Mathews has presented evidence that de fendants, including Lancaster General as a joint venturer in the MidAtlantic Orthopedic Institute, were his competit ors. But he has not presented evidence that the professional re view action taken by Lancaster General's Board was motivated by anything
other than a reasonable belief that it would furthe r quality
health care. As the district court concluded after carefully reviewing the evidence, Dr. Mathews has failed to r ebut  11112(a)'s presumption that the peer reviewers' act ion met the standard for immunity from suit for monetary damage s: The undisputed evidence shows that, in mak ing its decision, the Board relied on the findings of the Rothacker Committee and th e independent expert Dr. Wilson, as reported to the Board by LGH CEO Mr. Young and defenda nt Dr. Hoke. The Rothacker Committee report represents the conclusion of a committee o f three board certified orthopedic surgeons that 23 of Dr. Mathews' cases during a six - month period did not meet appropriate standards of care. These findings were confirmed by those of the independent expe rt, Dr. Wilson of Cornell Medical College. . .

.

After reviewing the cases identified by the Rothacker Committee, Dr. Wilson submit ted a detailed report in which he concluded th at the pattern and trend of care reflected we re "substandard" in fourteen separate respect s, which he enumerated. . . . The restriction s voted on by the Board appear tailored to m eet the concerns raised by Dr. Wilson's report

. Thus, in addition to the statutory presumption in favor of defendants, the evidentiary record in this case provides ample support for the conclusion that the
Board's action was taken in a reasonable belief that it would further quality healt h

care. . . .

Dr. Mathews has produced no evidence that anticompetitive considerations actual ly entered into the Board's decisionmaking process. . . . There is no evidence that t he reports contained or that the Board considered any supporting evidence that wa snot related to the quality of health care.

Rather, Dr. Mathews appears to base his argument solely on his allegation that the defendants were his competitors and stood to gain by eliminating him from the market.

Mere participation by plaintiff's competitors in the Hoke or Rothacker Committee investigations or the Board's vo te, however, does not run afoul of the [Health Care Quality Improvement Act]. Although t he Act suggests that a hearing officer or individuals sitting on a hearing panel sho uld not be in direct competition with the physician who is the subject of the hearin g,

see  11112(b)(3)(A)(ii) & (iii), it imposes no such requirement on participants in oth er phases of the peer review process. To the extent plaintiff is attempting to suggest
that it was not reasonable for the Board t o rely on the Rothacker report because it wa s generated by orthopedic surgeons who are plaintiff's competitors, this contention i s negated by the fact that the committee's findings were confirmed by Dr. Wilson, who is not in any way in competition with Dr. Mathews. Moreover, we note that although the [Act] does not require it, the physician members of the Board, defendant Drs. Hoke, Argires, and Shertzer, abstained from voti ng on the privilege restrictions. Thus plaintiff's arguments concerning his competitors' participation in the peer rev iew process cannot serve to rebut the presumpt ion
in favor of defendants. Opinion and Order, slip op. at 28-32. Because Dr. Mathews has not rebutted the presumption that defendants' actio ns were taken in the reasonable belief that they would further qu ality health care, and, in fact, the evidence supports the concl usion that defendants were motivated by legitimate health care concerns, the district court correctly found defendants met the r equirements of the first prong of  11112(a) of the Act.
2. Reasonable Effort to Obtain the Facts Dr. Mathews also argues that defendants di d not engage
in a reasonable effort to obtain the facts under  11112(a)(2) of the Act. He points to several problems in the fact finding process, specifically that the Rothacker Committee was composed of competitors, did not request formal authorizatio n to begin a focused review of Dr. Mathews' cases, and did not r eveal to the Board the extent of participation in the review pro cess of each member of the committee. Dr. Mathews also emphasiz es the Board did not undertake an independent investigation and did not consider Lancaster General routine internal quality reviews. Contrast Imperial v. Suburban Hosp. Ass'n, Inc., 86 2 F. Supp.1390, 1399 (D. Md. 1993) (Board questioned plaintif f's attorney

and reviewed records), aff'd, 37 F.3d 1026 (4th Cir . 1994). Although Dr. Mathews challenges the integr ity of the Rothacker Committee, he has not rebutted the presum ption that defendants engaged in a reasonable effort to obtain the facts. The investigation of the Rothacker Committee, as a preliminary, investigative "professional review activity," was n ot required independently to meet the requirements of  11112(a). See suprapart III.A. The Act contains no provision barring compe titors from participating in "professional review activiti es." Nor does it require formal authorization for preliminary "pr ofessional review activities." Moreover, it is undisputed tha t Dr. Mathews'
standard of care became the focus of attention duri ng the Rothacker Committee's review of Dr. Kent's cases, w hich necessarily encompassed the cases of Dr. Mathews. The relevant inquiry under  11112(a)(2) is whether the totality of the process leading up to the Board's " professional review action" on September 16, 1993 evidenced a re asonable
effort to obtain the facts of the matter. The Boar d relied on the recommendations of two separate reviews. The i nitial review by the Rothacker Committee took over two years to c omplete and reviewed 208 cases. The second review was performe d by an independent outside reviewer retained by Lancaster General. The outside reviewer, Dr. Wilson, confirmed the finding s of the Rothacker Committee. The district court correctly concluded that Dr. Mathews has not overcome the presumption that t he Board
undertook reasonable efforts to obtain the facts of the matter in compliance with  11112(a)(2). See Opinion and Order, slip op.
at 38. 3. Adequate Notice and Hearing Procedure s Dr. Mathews does not contest on appeal tha t Lancaster General and the defendant individual physicians aff orded him adequate notice and hearing procedures in accordanc e with  11112(a)(3) of the Act. A review of the record con firms defendants complied with  11112(a)(3). Dr. Mathews was given notice of the progre ss of the professional review activities at each step. A cop y of the March 19, 1992 letter of the Rothacker Committee was sent to Dr. Mathews at the same time its conclusions were repor ted to the Medical and Dental Staff. On April 30, 1992, Dr. J ohnson sent a letter to Dr. Mathews informing him that an outside reviewer would review the 27 cases identified by the Rothack er Committee.
This letter included minutes of the Medical and Den tal Staff Executive Committee meeting, in which the Executive Committee indicated that the outside review "may result in a recommendation regarding Dr. Mathews' clinical privileges." Befor e the outside reviewer, Dr. Wilson, commenced his review, Dr. Mat hews was given the opportunity to provide additional materials, an d he did so. Dr. Mathews was provided with a copy of Dr. Wilson' s March 18, 1993 report. Lancaster General informed Dr. Mathew s that it was considering placing restrictions on his privileges and it gave Dr. Mathews the opportunity to respond informally. After the Board voted to restrict Dr. Mathews' privileges on September 16, 1993, Dr. Young informed Dr. Mathews of the Board's decision byletter dated September 22, 1993. The letter inform ed Dr. Mathews

of his right to request a hearing, stated the time limit for doing so, and provided a summary of the rights he w ould be afforded at the hearing. The letter also stated th at Dr. Mathews would be provided the procedural safeguards set for forth
in the Act. After Dr. Mathews requested a hearing, the Board suspended the proposed restrictions until the heari ng could be held. Shortly thereafter, Dr. Mathews filed this s uit, shortcircuiting the completion of the review procedures called for by
 11112(b)(3). Even though the hearing has never be en held, Lancaster General complied with the safe harbor pro vision,  11112(b), in all respects until the time when Dr. M athews filed suit. In fact, Lancaster General provided Dr. Math ews with additional notices and procedural rights during the conduct of preliminary professional review activities that wer e not required by the Act. We do not believe a plaintiff can depr ive defendants of immunity by refusing to participate in the heari ng required

under  11112(b)(3). Accordingly, we conclude Dr. Mathews has not raised a material issue of fact rebutting the p resumption that defendants complied with  11112(a)(3) of the Act.
4. Reasonable Belief that the Action was Warranted by

the Facts Known Finally, Dr. Mathews disputes whether the Board's professional review action against him was taken in the reasonable belief that it "was warranted by the fac ts known," as required under  11112(a)(4) of the Act. Dr. Wilson, the outside reviewer, conclude d that Dr. Mathews had provided substandard care in spine surg ery cases. The Board then placed restrictions on Dr. Mathews' privileges to conduct spine surgery. Because these restrictions were tailored to address the health care concerns raised by the r eports of the Rothacker Committee and Dr. Wilson, we believe the evidence supports the conclusion that the restrictions were imposed based on a reasonable belief that they were warranted by the facts known. Moreover, Dr. Mathews has produced insuffic ient evidence to rebut the presumption that the Board's action wa s taken in the
reasonable belief that it was warranted. As we hav e noted, Dr. Mathews relies on the opinion provided by his exper t witness, Dr. Goldner, who disagreed with Dr. Wilson's conclusion s. While the conflicting expert reports raise an issue of fact a s to the adequacy of care provided by Dr. Mathews, they do n ot rebut the presumption that the Board made its decision in the reasonable belief that it was warranted by the facts known. T he conclusions of Dr. Goldner's report were not among "the facts k nown" at the time of the professional review action. Furthermor e, the Rothacker Committee report and the report of Dr. Wi lson were not so obviously mistaken or inadequate as to make reli ance on them unreasonable. The requirements of  11112(a)(4) have been met as

well. 5. Summary on Immunity under the Act

We hold  11112(a) of the Act imposes an objective

standard. Under  11112(a)(1), this standard is met when peer reviewers reasonably conclude that their actions wi ll restrictincompetent behavior or protect patients. Because the record

supports the district court's holding that Lancaste r General and the individual defendants reasonably believed their actions would further quality health care and also fulfilled the remaining three prongs of  11112(a) of the Act, we will affirm the district court's judgment that defendants are immun e from suit for monetary damages.
IV. Antitrust Claims Dr. Mathews alleges Lancaster General, Ort hopedic Associates, Columbia and the individual defendants conspired to conduct a sham peer review investigation and to res trict his privileges at Lancaster General and Columbia. He a rgues the defendants' conspiracy violated  1 of the Sherman Act, entitling him to treble damages under 15 U.S.C.  15 (1994) and to injunctive relief under 15 U.S.C.  26. Although several of the defendants are immune from money damages under the Health Care Quality Improvement Act, we must still examine Dr. Mathews'
antitrust claims in order to determine whether he i s entitled to injunctive relief. The district court granted summ ary judgment
to all defendants on the antitrust claims. Our review of a grant of summary judgment is plenary. Summary judgment must be granted where no genuine i ssue of
material fact exists for resolution at trial and th e moving party is entitled to judgment as a matter of law. Fed. R . Civ. P. 56(c). The moving party bears the burden of showin g the absence of any genuine issues of material fact. Celotex Co rp. v. Catrett, 477 U.S. 317, 323 (1986). Where the nonmo ving party bears the burden of proof at trial, the moving part y may meet its burden by showing that the nonmoving party has not offered
evidence sufficient to establish the existence of a n element
essential to its case. Id. at 322. Section 1 of the Sherman Act provides: Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, i s declared to be illegal.

15 U.S.C.  1. To establish a section 1 violation, a plaintif f must prove: (1) concerted action by the defendants; (2 ) that produced anticompetitive effects with in the relevant product and geographic market s; (3) that the concerted actions were illega l; and (4) that it was injured as a proximate
result of the concerted action. Petruzzi's IGA Supermarkets, Inc. v. Darling-Delawa re Co., 998 F.2d 1224, 1229 (3d Cir.), cert. denied sub nom. Mo yer Packing Co. v. Petruzzi's IGA Supermarkets, Inc., 114 S. Ct . 554 (1993). The district court granted summary judgment to defe ndants, holding that Dr. Mathews had not presented sufficie nt evidence of concerted action and antitrust injury.
A. Concerted Action "The very essence of a section 1 claim, of course, is the existence of an agreement." Alvord-Polk, Inc. v. F.Schumacher & Co., 37 F.3d 996, 999 (3d Cir. 1994), cert. denied,

115 S. Ct. 1691 (1995). For a section 1 claim, "a plaintiff must prove `concerted action,' a collective reference to the `contract . . . combination or conspiracy.'" Siegel Transfer , Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1131 (3d Cir. 1995). A "`unity of purpose or a common design and understan ding or a meeting of the minds in an unlawful arrangement' mu st exist to trigger section 1 liability." Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 771 (1984) (quoting Ameri can Tobacco Co. v. United States, 328 U.S. 781, 810 (1946)). " Unilateral action, no matter what its motivation, cannot viola te [section] 1." Edward J. Sweeney & Sons, Inc. v. Texaco, Inc. , 637 F.2d 105, 110 (3d Cir. 1980), cert. denied, 451 U.S. 911 (1981).
The district court concluded the Board act ed independently and not in concert with Orthopedic As sociates or the individual defendants in taking the professiona l review action against Dr. Mathews. See Opinion and Order, slip op. at 50-54. We believe the evidence supports the distri ct court's conclusion. It is undisputed that only the Board h ad the authority to restrict Dr. Mathews' privileges. Whe re a hospital board has ultimate decision making authority, "[s]i mply making a peer review recommendation does not prove the exist ence of a conspiracy [among the hospital and its staff]; ther e must be something more such as a conscious commitment by th e medical staff to coerce the hospital into accepting its rec ommendation." Oksanen v. Page Memorial Hosp., 945 F.2d 696, 706 ( 4th Cir. 1991), cert. denied, 502 U.S. 1074 (1992); see also Todorov v. DCH Healthcare Auth., 921 F.2d 1438, 1459 (11th Cir . 1991) ("[T]hat the hospital board had before it recommend ations from the medical staff and the radiologists were pleased with [the hospital's] ultimate decision is, standing alone, i nsufficient to infer an antitrust conspiracy."). Dr. Mathews has not raised a genuine issue of material fact as to whether Orthop edic Associates or Drs. Rothacker, Westphal, Shertzer, L yet, Argires
and Hoke coerced or lobbied the Board to restrict D r. Mathews' privileges.
Dr. Mathews views the activities of the Ro thacker Committee as evidence of a campaign of its members, Drs. Rothacker, Westphal, and Lyet, to restrict his priv ileges. The Rothacker Committee's recommendation was made eight een months
before the Board's vote. There is no evidence that any doctor on the Rothacker Committee had any further connection with the peer review process thereafter. Moreover, the Rothacker Committee suggested further review of Dr. Mathews' cases by a n outside reviewer. These facts negate an inference that the Rothacker Committee or its members were attempting to coerce the Board into restricting Dr. Mathews' privileges. Dr. Mathews also points out the presence o f Drs. Shertzer, Argires, and Hoke during the Board's vote to restrict his privileges. We do not believe the defendants' presence gives rise to an inference of an antitrust conspiracy. Al l the defendants abstained from voting, and Dr. Mathews h as presented no evidence that defendants attempted to influence or lobby the

Board.Dr. Mathews argues that the contractual re lationship

between Lancaster General and Orthopedic Associates relating to the MidAtlantic Orthopedic Institute supports an in ference that Orthopedic Associates and members of Orthopedic Ass ociates, Drs. Rothacker, Westphal, and Shertzer, unduly influence d the Board. Although a contractual relationship might support a n inference that Orthopedic Associates may have had the power t o influence the Board's decision, Dr. Mathews has not produced any evidence that such coercion actually occurred. Moreover, we believe peer review actions, when properly conducted, generally enhance competition and improv e the quality of medical care. See Weiss v. York Hosp., 745 F.2d 786, 821 n.60 (3d Cir. 1984) ("it seems obvious that by restricti ng staff privileges to doctors who have achieved a predeterm ined level of medical competence, a hospital will enhance its rep utation and the quality of medical care it delivers. Thus such action is pro-competitive"), cert. denied, 470 U.S. 1060 (198 5); Oksanen v. Page Memorial Hosp., 945 F.2d at 709 ("[T]he peer r eview process, by policing competence and conduct of doctors, can enhance competition."). We are reluctant to draw inference s of an antitrust conspiracy from ambiguous circumstantial evidence in cases where the challenged activity promotes compet ition. Evidence of conduct, which is "as consistent with p ermissible competition as with illegal conspiracy does not, wi thout more, support even an inference of conspiracy." Matsushi ta Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S . 574, 597 n.21 (1986); see also Alvord-Polk, Inc. v. F. Schum acher & Co., 37 F.3d at 1001. "[T]here must be evidence that te nds to exclude the possibility of independent action." Monsanto C o. v. SprayRite Service Corp., 465 U.S. 752, 768 (1984). Substantial evidence supports the conclusi on that the Board voted to restrict Dr. Mathews' privileges for legitimate health care reasons. The Board relied on the repor t of the independent reviewer, Dr. Wilson, in addition to La ncaster General's own internal review procedure conducted b y the Rothacker Committee. Although Dr. Mathews has prod uced some
circumstantial evidence of an economic motivation o n the part of defendants, the evidence he refers to is equally co nsistent with permissible competition and the promotion of qualit y patient care. Dr. Mathews has not produced evidence that t ends to exclude the possibility that the Board acted indepe ndently. Under these circumstances, we are reluctant to infe r an antitrust conspiracy, and we believe the district court corre ctly granted summary judgment to Lancaster General and the indiv idual defendants. Cf. Willman v. Heartland Hospital East , 34 F.3d 605, 611 (8th Cir. 1994) ("the limitation and eventual t ermination of [plaintiff's] staff privileges . . . is as consiste nt with the lawful motive of promoting quality patient care as with an anticompetitive motive and therefore, without more, does not give rise to an inference of an antitrust conspiracy"), cert. denied, 115 S. Ct. 1361 (1995). Dr. Mathews also has not produced sufficie nt evidence of concerted action on the part of Lancaster Genera l and Columbia Hospital to survive summary judgment. While it is true thatLancaster General and Columbia were conducting merg er

negotiations at the time of Dr. Mathews' applicatio n for a renewal of privileges, the undisputed facts establi sh that Columbia reduced Dr. Mathews' privileges from court esy privileges to temporary privileges in the course of its normal staff review processes and in accordance with its own bylaws. B ecause Columbia's reduction of Dr. Mathews' privileges was as consistent with the lawful motive of following its bylaws as w ith an anticompetitive motive, we believe the evidence doe s not support an inference of an antitrust conspiracy. Id. We w ill affirm the district court's grant of summary judgment to Colum bia Hospital

as well. B. Antitrust Injury The district court entered summary judgmen t for defendants on the alternative ground that Dr. Mathe ws had not produced evidence raising an issue of material fact as to the existence of an antitrust injury. In antitrust cas es, a plaintiff must prove "injury of the type the antitr ust laws were intended to prevent and that flows from that which makes
defendants' acts unlawful." Alberta Gas Chemicals Ltd. v. E.I. du Pont de Nemours and Co., 826 F.2d 1235, 1240 (3d Cir. 1987) (quoting Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc. , 429 U.S. 477, 489 (1977)), cert. denied, 486 U.S. 1059 (1988 ). In other words, because "antitrust law aims to protect compe tition, not competitors, [a court] must analyze the antitrust i njury question from the viewpoint of the consumer." Id. at 1241. "An antitrust plaintiff must prove that challenged conduct affect ed the prices, quantity or quality of goods or services," not just his own welfare. Tunis Bros. Co., Inc. v. Ford Motor Co., 952 F.2d 715, 728 (3d Cir. 1991), cert. denied, 505 U.S. 1221 (19 92).
The district court found the evidence does not support the existence of an antitrust injury resulting from a restriction on Dr. Mathews' privileges at Lancaster General bec ause orthopedic services are still readily available to consumers in the Lancaster area from a large and ever-increasing number of providers. Opinion and Order, slip op. at 21. The district court also pointed out that the Board's restriction s on Dr. Mathews' privileges do not completely extinguish Dr . Mathews' ability to provide low cost services, but merely cu rtail his ability to perform spine surgery at Lancaster Gener al. We believe the record supports the district court's co nclusions. Accordingly, the district court's grant of summary judgment was

proper. V. Attorneys' Fees under the Health Care Quality Improvement Act Lancaster General, Orthopedic Associates, and the individual defendants argue the district court shou ld have awarded them attorneys fees under the Health Care Q uality Improvement Act's fee shifting provision, 42 U.S.C.  11113. They assert the award of attorneys' fees to prevail ing defendants is mandatory under the Act. We disagree. "[T]he a ppropriate
standard of review of a district court's decision r egarding the award of attorney fees and costs under the [Act] is abuse of discretion." Muzquiz v. W.A. Foote Memorial Hosp., Inc., 70 F.3d 422, 431-32 (6th Cir. 1995); see also Smith v. Rick s, 31 F.3d1478, 1487 (9th Cir. 1994), cert. denied, 115 S. Ct . 1400 (1995);

Johnson v. Nyack Hosp., 964 F.2d 116, 123 (2d Cir. 1992).

To recover under  11113 "defendants must establish (1) that they are among the persons covered by  11111; (2) that the
standards set in  11112(a) were followed; (3) that they substantially prevailed; and (4) that [plaintiff's] claims or conduct during the litigation were frivolous, unrea sonable,
without foundation or in bad faith." Wei v. Bodner , 1992 WL 165860 at *2 (D. N.J.). Defendants have concededly established
the first three elements. The district court denie d fees on the grounds that Dr. Mathews' suit was not "frivolous, unreasonable, without foundation or in bad faith." It concluded, "[t]he majority of the case law was not sufficiently estab lished for us to say that plaintiff's claim was frivolous, unreas onable, without foundation, or in bad faith." It also note d that "[n]ot all of the facts were known to plaintiff at the fil ing of this case," and "[p]laintiff's state law claims were dis missed without prejudice." See Order, Mathews v. Lancaster Gen. H osp., Nos. 93- 6774, 94-4647 (June 9, 1995). We believe that "it is important . . . [to ] resist the understandable temptation to engage in post hoc rea soning by concluding that, because a plaintiff did not ultima tely prevail,
his action must have been unreasonable or without f oundation." Muzquiz v. W.A. Foote Memorial Hosp., Inc., 70 F.3d at 432. The district court carefully considered whether Dr. Mathews' suit was frivolous, unreasonable, without foundation, or in bad faith. It correctly pointed out the dearth of case law on
the Act at the time Dr. Mathews filed suit. We con clude the
district court did not abuse its discretion in refu sing to award attorneys' fees.
VI. Conclusion For the foregoing reasons, we will affirm the judgment
of the district court.