1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-21-1996

Mathews v. Lancaster Gen Hosp

Precedential or Non-Precedential:

Docket 95-1391,95-1392,95-1532,95-1548

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Recommended Citation

"Mathews v. Lancaster Gen Hosp" (1996). 1996 Decisions. Paper 156.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/156
 UNITED 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 FOUNDATION; 

 GERALD W. ROTHACKER, JR., M.D.; THOMAS R. WESTPHAL, 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, LTD. 

 

 ROBERT S. MATHEWS, M.D. 

 v. 

 LANCASTER GENERAL HOSPITAL; 

 LANCASTER GENERAL HOSPITAL FOUNDATION; 

 COLUMBIA HOSPITAL; COLUMBIA HOSPITAL FOUNDATION; 

 GERALD W. ROTHACKER, JR., M.D.; THOMAS R. WESTPHAL, M.D.; 

 JOHN SHERTZER, M.D.; J. PAUL LYET, M.D.; 

 JAMES P. ARGIRES, M.D.; HUGH H. HOKE, JR., M.D. 

 Lancaster General Hospital, 

 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., 

 Appellants at No. 95-1532 
 

 ROBERT 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 Pennsylvania 

 (D.C. Civil Action Nos. 93-cv-06774 and 94-cv-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 19103 
 Attorney 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 Lancaster 

General Hospital, Columbia Hospital, and several physicians, 

alleging defendants conspired to curtail his professional 

privileges in violation of the Sherman Act and state law. The 

district court held all defendants except Columbia Hospital were 

immune from suit for monetary damages under the Health Care 

Quality Improvement Act of 1986 (the "Act"), 42 U.S.C.  11101- 

11152 (1988 & Supp. IV 1992). It also found that Dr. Mathews 

failed to produce evidence of concerted action and antitrust 

injury. The district court entered summary judgment against Dr. 

Mathews on his antitrust claims and dismissed his pendant state 

law claims. See Opinion and Order, Mathews v. Lancaster 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 supports the 

conclusion that defendants possessed a reasonable belief that 

their action was in furtherance of quality health care, we 

believe the district court correctly found them to be immune from 

suit. We also hold that the award of attorneys' fees to 

prevailing defendants under the Act lies in the discretion of the 

district court. 

 Dr. Mathews also challenges the district court's grant 

of summary judgment on the antitrust claims. We believe Dr. 

Mathews has failed to raise a genuine issue of material fact as 

to whether defendants engaged in concerted action in restraint of 

trade. Nor has he shown the existence of an antitrust injury. 

We will affirm. 

 I. Factual Background 
 Dr. Robert Mathews is an orthopedic surgeon who has 

been on the staff of Lancaster General Hospital ("Lancaster 

General") since 1973 and Columbia Hospital ("Columbia") since 

1992. He practices as a corporate partner with another 

orthopedic surgeon, Dr. George Kent. Lancaster General, 

Columbia, and affiliated corporate entities, the Lancaster 

General Hospital Foundation and the Columbia Hospital Foundation, 

are defendants in this antitrust suit. Also defendants are 

Orthopedics Associates of Lancaster, Ltd. ("Orthopedic 

Associates"), an orthopedic surgery group practice in competition 

with Dr. Mathews' practice, and several doctors, including Drs. 

Gerald Rothacker, Jr., Thomas Westphal, and John Shertzer, all 

orthopedic surgeons and shareholders of Orthopedic Associates. 

Dr. Mathews alleges that Lancaster General, Columbia, Orthopedic 

Associates, and the individual defendants engaged in 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 Lyet, another 

orthopedic surgeon, Dr. James Argires, a neurosurgeon and a 

member of the Lancaster General Hospital Board of Directors, and 

Dr. Hugh Hoke, a former President of the Medical and 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 the procedure, 

a high speed drill slipped and tore the patient's esophagus. Dr. 

Kent attempted to repair the esophagus himself without seeking 

outside assistance or a consultation. Dr. Mathews was not 

present in the operating room when the esophagus was injured. 

Later that evening, the patient suffered complications 

necessitating emergency surgery to repair the tear.

 After the accident, Dr. Kent's hospital privileges were 

suspended for five days while an ad hoc committee, chaired by Dr. 

Hoke and composed of several other Lancaster General physicians 

(the "Hoke Committee"), investigated. The Hoke Committee 

concluded that Dr. Kent had acted inappropriately by failing to 

seek a consultation on the patient's torn esophagus. In a report 

dated January 4, 1990, the Hoke Committee recommended a focused 

review of Dr. Kent's cases for a prospective six month period by 

the Quality Assurance Committee of the Department of Surgery and 

urged that letters of reprimand be placed in the confidential 

files of both Drs. Kent and Mathews. The report concluded that 

Dr. Mathews, as co-surgeon, bore some responsibility for the 

incident. 

 In accordance with the Hoke Committee's recommendation, 

Dr. Robert Johnson, the President of the Medical and Dental 

Staff, authorized a second ad hoc committee of three boardcertified orthopedic surgeons to conduct the six-month focused 

review of Dr. Kent's cases. The committee was selected 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 the 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 surgical cases in 

which Dr. Kent served as either the primary or assisting surgeon. 

Apparently Dr. Rothacker played the most important role in the 

review. At the end of the review which took two years, the 

committee concluded that 27 of the 208 cases evidenced a 

substandard level of care. Twenty-three of those cases, the 

committee discovered, involved spine surgery, and Dr. Mathews had 

been the primary surgeon in each of those cases. Dr. Rothacker 

reported the findings of the committee to Dr. Johnson in a March 

19, 1992 letter. In the letter, Dr. Rothacker recommended that 

the 27 files rated substandard by the committee be sent to an 

outside agency for further review, and "[i]f this agency agrees 

that these cases were not managed in an acceptable fashion, a 

restriction of privileges would be indicated." Both Dr. Kent and 

Dr. Mathews were sent copies of the letter. Dr. Rothacker also 

reported the conclusions of his committee to the Executive 

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 report. 

Subsequently, in a letter dated April 30, 1992, Dr. Johnson 

informed Dr. Mathews that an independent reviewer would evaluate 

both Dr. Mathews' and Dr. Kent's cases. Attached to this letter 

was a copy of the minutes of the April 6, 1992 meeting 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 these 

 cases, and may result in a recommendation 

 regarding Dr. Mathews' clinical privileges. 

 At the time he was conducting the review of Dr. Kent's 

cases, Dr. Rothacker was also concerned about economic trends 

affecting the medical profession. In a November 1991 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 anticipate a 

significant drop in our gross earning ability and most 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 formed a joint 

venture--the MidAtlantic Orthopedic Institute. The Institute was 

intended "to develop, operate and market a comprehensive 

orthopedic care and orthopedic surgical services program, 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 Associates. 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 reviewer to 

review the 27 cases in which the Rothacker Committee had found 

that Drs. Kent and Mathews had provided substandard care. The 

Foundation chose Philip D. Wilson, Jr., M.D., of Cornell Medical 

College. Dr. Wilson is a board certified orthopedic surgeon who 

has taught in the field of orthopedic surgery for over 40 years. 

Drs. Kent and Mathews were given an opportunity to submit 

additional information regarding the files to be sent to the 

independent reviewer, and both submitted some supplementary 

materials. On March 18, 1993, Dr. Wilson issued a report 

concluding the quality of care rendered by Drs. Kent 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 patient 

 work-ups lacking clear definition of primary 

 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 extensive 

 lumbar surgical decompressions and fusions to 
 patients irrespective of age and type of 

 condition. 

 (8) Lack of well controlled ambulatory non- 

 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, etc. 

 (11) The lack of a concise but descriptive

 discharge note with details of course as well 

 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 for 

 suitable internal fixation of the spine. 

 (14) Lack of observing suitable principles

 for optimal results from spinal arthrodesis 

 grafting techniques. 

Dr. Wilson recommended that both doctors' privileges 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 property 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 would sell the 

property and voluntarily cease to perform spine surgery, and 

Lancaster General would not submit an adverse report to the 

National Practitioner Data Bank. In accordance with his 

understanding, Dr. Mathews voluntarily did not request privileges 

for spine surgery in his 1994-95 staff privileges application to 

Lancaster General, submitted on July 29, 1993. But on August 27, 

1993, Dr. Hoke wrote to Dr. Mathews rejecting the linkage of the 

sale of property and Dr. Mathews' staff privileges. 
 On September 16, 1993, the Lancaster General Hospital 

Board of Directors voted to restrict Dr. Mathews' privileges to 

perform spine surgery as either primary or assisting 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 of 12 months. 

Dr. Shertzer (a partner in Orthopedic Associates), Dr. Argires, 

and Dr. Hoke abstained from voting, although they were members of 

the Board. The Board notified Dr. Mathews of its decision by 

letter dated September 22, 1993 and informed him of his right to 

a fair hearing under Lancaster General Hospital Medical Staff 

Bylaws. On October 26, 1993, Dr. Mathews requested a hearing, 

and the Board subsequently voted to suspend the restrictions on 

his privileges until a hearing could be held. Before 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. Columbia granted Dr. 

Mathews "temporary privileges" in the Division of Surgery, 

Orthopedics, effective April 22, 1992. Later that year, Dr. 

Mathews was granted "provisional courtesy privileges" for a 

period of twelve months. Near the end of that period, on August 

25, 1993, Columbia's Credentials Committee recommended that Dr. 

Mathews' privileges be upgraded to "courtesy privileges," and 

Columbia upgraded Dr. Mathews' status the next month. Dr. 

Mathews submitted a reappointment application to have his 

privileges at Columbia renewed for the year beginning January 1, 

1994, but in the course of reviewing Dr. Mathews' application, 

Mr. Robert Katana, President and CEO of Columbia Hospital, 

discovered the application did not contain a reappointment 

reference from Lancaster General. Columbia requires all staff 

physicians to submit a reappointment reference from any other 

hospital where they exercise privileges, and Mr. Katana requested 

such a reference from Dr. Mathews. Dr. Mathews never submitted 

the reappointment reference from Lancaster General, and his 

courtesy staff privileges at Columbia expired on December 31, 

1993. Thereafter, Columbia granted Dr. Mathews "temporary 

privileges." In September 1993, at the time Mr. Katana was 

considering Dr. Mathews' application for an extension 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 members of 

Lancaster General on December 15, 1993, and against Orthopedic 

Associates of Lancaster, Ltd. on August 1, 1994. The two cases 

were consolidated. The district court granted summary judgment 

to Lancaster General, Orthopedic Associates, and the individual 

defendants on federal and state claims for monetary relief 

because it found they enjoyed immunity from monetary damages 

under  11111(a) of the Health Care Quality Improvement Act. The 

district court also granted summary judgment to all defendants, 

including Columbia, on Dr. Mathews' antitrust claims, holding he 

had not produced evidence showing concerted action on the part of 

the defendants or an antitrust injury. The district court 
entered summary judgment on Dr. Mathews' federal claims for 

injunctive relief and dismissed without prejudice state claims 

for injunctive relief. See Opinion and Order, Mathews v. 

Lancaster Gen. Hosp., Nos. 93-6774, 94-4647 (E.D. Pa. May 4, 

1995) ("Opinion and Order"). Mathews appeals the district 

court's grant of summary judgment. All defendants except 

Columbia appeal the district court's refusal to grant attorneys' 

fees. 

 We have jurisdiction under 28 U.S.C.  1291 to review 

the district court's final order. Our review of the district 

court's grant of summary judgment is plenary. Petruzzi's IGA 

Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 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 Quality 

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 unprofessional 

behavior." H.R. Rep. No. 903, 99th Cong., 2d Sess. 2 (1986), 

reprinted in 1986 U.S.C.C.A.N. 6287, 6384, 6384. Congress 

believed incompetent physicians could be identified through 

"effective professional peer review," which it chose to encourage 

by granting limited immunity from suits for money damages to 

participants in professional peer review actions. 42 U.S.C. 

11101(5), 11111(a). Congress also sought "to restrict the 

ability of incompetent physicians to move from State 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 Secretary of the 

Department of Health and Human Services. 42 U.S.C.  11101(2), 

11134. 

 The standards that a professional review action must 

satisfy in order to entitle participants in the review 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 suits by 

disciplined physicians. Congress believed "[t]he threat of 

private money damage liability under Federal laws, including 

treble damage liability under Federal antitrust law, unreasonably 

discourages physicians from participating in effective 

professional peer review." 42 U.S.C.  11101(4). The Act 

contains a fee shifting provision to discourage frivolous suits 

by physicians disciplined in peer review proceedings. See 42 

U.S.C.  11113. 

 The Act includes a presumption that a professional 

review activity meets the standards for immunity, "unless the 

presumption is rebutted by a preponderance of the evidence." 42 

U.S.C.  11112(a). This presumption results in an "unusual

standard" for reviewing summary judgment orders under the Act. 

"In a sense, the presumption language in [the Health Care Quality 
Improvement Act] means that the plaintiff bears the burden of 

proving that the peer review process was not reasonable." Bryan 

v. James E. Holmes Regional Medical Ctr., 33 F.3d 1318, 1333 

(11th Cir. 1994) (emphasis in original), cert. denied, 115 S. Ct. 

1363 (1995). "We must examine the record in this case to 

determine whether [Dr. Mathews] satisfied his burden of producing 

evidence that would allow a reasonable jury to conclude that the 

Hospital's peer review disciplinary process failed to meet the 

standards of the [Act]." Id. at 1334; see also Austin v. 

McNamara, 979 F.2d 728, 734 (9th Cir. 1992) (same).

 A. Professional Review Actions under the Act 

 

 Dr. Mathews argues Lancaster General and defendant 

physicians conducted at least two "professional review actions" 

relating to him: first, the March 19, 1992 letter of Dr. 

Rothacker on behalf of the Rothacker Committee recommending a 

focused review of his cases and a possible restriction of his 

privileges, and second, the September 16, 1993 vote by the 

Lancaster General Hospital Board of Directors to revoke his spine 

privileges. The Act defines a "professional review action" as: 

 an action or recommendation of a professional 

 review body which is taken or made in the 

 conduct of professional review activity . . . 

 which affects (or may affect) adversely the 

 clinical privileges, or membership in a 

 professional society, of a physician. Such 

 term . . . also includes professional review 

 activities relating to a professional review 

 action. 

42 U.S.C.  11151(9). Dr. Mathews contends that Dr. Rothacker's 

March 19, 1992 letter constituted a professional review action 

because it made a recommendation that had the potential to 

adversely affect his clinical privileges. He argues 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 definitions of 

"professional review action" and "professional review activity" 

together, concluded that "the term `professional review 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, slip 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 district court's 

analysis. 

 The definition of "professional review action" 

encompasses decisions or recommendations by peer review bodies 

that directly curtail a physician's clinical privileges or impose 

some lesser sanction that may eventually affect a physician's 
privileges. "Professional review actions" do not include 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 "professional 

review activities." See Fobbs v. Holy Cross Health Sys. Corp., 

789 F. Supp. 1054, 1065 (E.D. Cal. 1992) ("[P]rofessional 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' privileges, nor 

did it recommend that Dr. Mathews' privileges be restricted 

immediately. In fact, the letter did not impose any penalty. 

Instead, it recommended further investigation and review by an 

outside agency before any limitations were placed on Dr. Mathews' 

privileges. No professional review action occurred here until the 

Board's September 16, 1993 vote to suspend Dr. Mathews' 

privileges. See Austin v. McNamara, 979 F.2d at 736 ("no 

`action' was taken in this case until . . . the first occasion 

when [plaintiff's] clinical privileges were adversely affected. 

Prior to that time, he had been monitored and reviewed, but no 

professional review body had limited his clinical privileges or 

adopted a recommendation that they be limited."). Because Dr. 

Rothacker's March 19, 1992 letter was not a professional review 

action, the district court correctly held it did not 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 whether 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 obtain 

 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 after 

 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 basis of 

immunity was proper. 

 1. Reasonable Belief that the Action was in the 
 Furtherance of Quality Health Care 

 On appeal, Dr. Mathews argues he raised material issues 

of fact as to whether participants in the peer review proceedings 

at Lancaster General acted "in the reasonable belief that [a 

restriction of his privileges] was in the furtherance of quality 

health care," as is required under  11112(a)(1) of the Act. He 

maintains that defendants were in direct economic competition 

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 anticompetitive motive 

are irrelevant to the question of whether a decision was taken in 

a reasonable belief that it would further quality health care." 

Opinion and Order, slip op. at 29-30. 

 Other courts of appeals, in evaluating summary judgment 

orders granted on the basis of immunity, have uniformly 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. Ricks, 31 F.3d 

1478, 1485 (9th Cir. 1994) ("the `reasonableness' requirements of 

 11112(a) were intended to create an objective standard, rather 

than a subjective standard"), cert. denied, 115 S. Ct. 1400 

(1995). They have held that a defendant's subjective 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 quality health 

care. See, e.g., Bryan v. James E. Holmes Regional Medical Ctr., 

33 F.3d 1318, 1335 (11th Cir. 1994) (Plaintiff's "assertions of 

hostility do not support his position [that the hospital 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 real issue is the 

sufficiency of the basis for the [Hospital's] actions."), cert. 

denied, 115 S. Ct. 1363 (1995); Austin v. McNamara, 979 F.2d 728, 

734 (9th Cir. 1992) (same); see also Opinion and Order, 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 "good 

 faith" standard for professional review 

 actions. In response to concerns that "good 

 faith" might be misinterpreted as requiring 

 only a test of the subjective state of mind 

 of the physicians conducting the professional 

 review action, the Committee changed to a 

 more objective "reasonable belief" standard. 

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 passage 

relates to a previous version of the Act and to  11112(a)(1) in 

particular, we believe that Congress' use of the words 

"reasonable belief" in both  11112(a)(1) and (4) indicates an 

intention to create an objective standard with regard to 

11112(a) as a whole. Under  11112(a)(1), this standard "will 
be 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 1986 

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 defendants, 

including Lancaster General as a joint venturer in the 

MidAtlantic Orthopedic Institute, were his competitors. But he 

has not presented evidence that the professional review action 

taken by Lancaster General's Board was motivated by anything 

other than a reasonable belief that it would further quality 

health care. As the district court concluded after carefully 

reviewing the evidence, Dr. Mathews has failed to rebut 

11112(a)'s presumption that the peer reviewers' action met the 

standard for immunity from suit for monetary damages: 

 The undisputed evidence shows that, in making 

 its decision, the Board relied on the 

 findings of the Rothacker Committee and the 

 independent expert Dr. Wilson, as reported to 

 the Board by LGH CEO Mr. Young and defendant 

 Dr. Hoke. The Rothacker Committee report 

 represents the conclusion of a committee of 

 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 expert, 

 Dr. Wilson of Cornell Medical College. . . . 

 After reviewing the cases identified by 

 the Rothacker Committee, Dr. Wilson submitted 

 a detailed report in which he concluded that 

 the pattern and trend of care reflected were 

 "substandard" in fourteen separate respects, 

 which he enumerated. . . . The restrictions 

 voted on by the Board appear tailored to meet 

 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 health 

 care. . . . 

 Dr. Mathews has produced no evidence 

 that anticompetitive considerations actually 

 entered into the Board's decisionmaking 

 process. . . . There is no evidence that the 

 reports contained or that the Board 

 considered any supporting evidence that was 
 not 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 vote, 

 however, does not run afoul of the [Health

 Care Quality Improvement Act]. Although the 

 Act suggests that a hearing officer or 

 individuals sitting on a hearing panel should 

 not be in direct competition with the 

 physician who is the subject of the hearing, 

 see  11112(b)(3)(A)(ii) & (iii), it imposes 

 no such requirement on participants in other 

 phases of the peer review process. To the

 extent plaintiff is attempting to suggest 

 that it was not reasonable for the Board to 

 rely on the Rothacker report because it was 

 generated by orthopedic surgeons who are 

 plaintiff's competitors, this contention is 

 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 voting 

 on the privilege restrictions. Thus 

 plaintiff's arguments concerning his 

 competitors' participation in the peer review 

 process cannot serve to rebut the presumption 

 in favor of defendants. 

Opinion and Order, slip op. at 28-32. Because Dr. Mathews has 

not rebutted the presumption that defendants' actions were taken 

in the reasonable belief that they would further quality health 

care, and, in fact, the evidence supports the conclusion that 

defendants were motivated by legitimate health care concerns, the 

district court correctly found defendants met the requirements of 

the first prong of  11112(a) of the Act. 

 2. Reasonable Effort to Obtain the Facts

 Dr. Mathews also argues that defendants did not engage 

in a reasonable effort to obtain the facts under  11112(a)(2) of 

the Act. He points to several problems in the factfinding 

process, specifically that the Rothacker Committee was composed 

of competitors, did not request formal authorization to begin a 

focused review of Dr. Mathews' cases, and did not reveal to the 

Board the extent of participation in the review process of each 

member of the committee. Dr. Mathews also emphasizes 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., 862 F. Supp. 
1390, 1399 (D. Md. 1993) (Board questioned plaintiff's attorney 

and reviewed records), aff'd, 37 F.3d 1026 (4th Cir. 1994). 

 Although Dr. Mathews challenges the integrity of the 

Rothacker Committee, he has not rebutted the presumption 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 not required 

independently to meet the requirements of  11112(a). See suprapart 

III.A. The Act contains no provision barring competitors 

from participating in "professional review activities." Nor does 

it require formal authorization for preliminary "professional 

review activities." Moreover, it is undisputed that Dr. Mathews' 

standard of care became the focus of attention during the 

Rothacker Committee's review of Dr. Kent's cases, which 

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 reasonable 

effort to obtain the facts of the matter. The Board relied on 

the recommendations of two separate reviews. The initial review 

by the Rothacker Committee took over two years to complete and 

reviewed 208 cases. The second review was performed by an 

independent outside reviewer retained by Lancaster General. The 

outside reviewer, Dr. Wilson, confirmed the findings of the 

Rothacker Committee. The district court correctly concluded that 

Dr. Mathews has not overcome the presumption that the 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 Procedures 

 Dr. Mathews does not contest on appeal that Lancaster 

General and the defendant individual physicians afforded him 

adequate notice and hearing procedures in accordance with 

11112(a)(3) of the Act. A review of the record confirms 

defendants complied with  11112(a)(3). 

 Dr. Mathews was given notice of the progress of the 

professional review activities at each step. A copy of the March 

19, 1992 letter of the Rothacker Committee was sent to Dr. 

Mathews at the same time its conclusions were reported to the 

Medical and Dental Staff. On April 30, 1992, Dr. Johnson sent a 

letter to Dr. Mathews informing him that an outside reviewer 

would review the 27 cases identified by the Rothacker Committee. 

This letter included minutes of the Medical and Dental Staff 

Executive Committee meeting, in which the Executive Committee 

indicated that the outside review "may result in a recommendation 

regarding Dr. Mathews' clinical privileges." Before the outside 

reviewer, Dr. Wilson, commenced his review, Dr. Mathews was given 

the opportunity to provide additional materials, and he did so. 

Dr. Mathews was provided with a copy of Dr. Wilson's March 18, 

1993 report. Lancaster General informed Dr. Mathews 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 by 
letter dated September 22, 1993. The letter informed Dr. Mathews 

of his right to request a hearing, stated the time limit for 

doing so, and provided a summary of the rights he would be 

afforded at the hearing. The letter also stated that 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 hearing could be 

held. Shortly thereafter, Dr. Mathews filed this suit, shortcircuiting the completion of the review procedures called for by 

 11112(b)(3). Even though the hearing has never been held, 

Lancaster General complied with the safe harbor provision, 

11112(b), in all respects until the time when Dr. Mathews filed 

suit. In fact, Lancaster General provided Dr. Mathews with 

additional notices and procedural rights during the conduct of 

preliminary professional review activities that were not required 

by the Act. We do not believe a plaintiff can deprive defendants 

of immunity by refusing to participate in the hearing required 

under  11112(b)(3). Accordingly, we conclude Dr. Mathews has 

not raised a material issue of fact rebutting the presumption 

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 facts known," as 

required under  11112(a)(4) of the Act. 

 Dr. Wilson, the outside reviewer, concluded that Dr. 

Mathews had provided substandard care in spine surgery 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 reports 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 insufficient evidence 

to rebut the presumption that the Board's action was taken in the 

reasonable belief that it was warranted. As we have noted, Dr. 

Mathews relies on the opinion provided by his expert witness, Dr. 

Goldner, who disagreed with Dr. Wilson's conclusions. While the 

conflicting expert reports raise an issue of fact as to the 

adequacy of care provided by Dr. Mathews, they do not rebut the 

presumption that the Board made its decision in the reasonable 

belief that it was warranted by the facts known. The conclusions 

of Dr. Goldner's report were not among "the facts known" at the 

time of the professional review action. Furthermore, the 

Rothacker Committee report and the report of Dr. Wilson were not 

so obviously mistaken or inadequate as to make reliance 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 will restrict 
incompetent behavior or protect patients. Because the record 

supports the district court's holding that Lancaster 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 immune from suit 

for monetary damages. 

 IV. Antitrust Claims 

 Dr. Mathews alleges Lancaster General, Orthopedic 

Associates, Columbia and the individual defendants conspired to 

conduct a sham peer review investigation and to restrict his 

privileges at Lancaster General and Columbia. He argues 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 is entitled to 

injunctive relief. The district court granted summary 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 issue of 

material fact exists for resolution at trial and the moving party 

is entitled to judgment as a matter of law. Fed. R. Civ. P. 

56(c). The moving party bears the burden of showing the absence 

of any genuine issues of material fact. Celotex Corp. v. 

Catrett, 477 U.S. 317, 323 (1986). Where the nonmoving party 

bears the burden of proof at trial, the moving party may meet its 

burden by showing that the nonmoving party has not offered 

evidence sufficient to establish the existence of an 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, is 

 declared to be illegal. 

15 U.S.C.  1. To establish a section 1 violation, a plaintiff 

must prove: 

 (1) concerted action by the defendants; (2) 

 that produced anticompetitive effects within 

 the relevant product and geographic markets; 

 (3) that the concerted actions were illegal; 

 and (4) that it was injured as a proximate

 result of the concerted action. 

Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 

F.2d 1224, 1229 (3d Cir.), cert. denied sub nom. Moyer Packing 

Co. v. Petruzzi's IGA Supermarkets, Inc., 114 S. Ct. 554 (1993). 

The district court granted summary judgment to defendants, 

holding that Dr. Mathews had not presented sufficient 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 understanding or a 

meeting of the minds in an unlawful arrangement' must exist to 

trigger section 1 liability." Copperweld Corp. v. Independence 

Tube Corp., 467 U.S. 752, 771 (1984) (quoting American Tobacco 

Co. v. United States, 328 U.S. 781, 810 (1946)). "Unilateral 

action, no matter what its motivation, cannot violate [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 acted 

independently and not in concert with Orthopedic Associates or 

the individual defendants in taking the professional review 

action against Dr. Mathews. See Opinion and Order, slip op. at 

50-54. We believe the evidence supports the district court's 

conclusion. It is undisputed that only the Board had the 

authority to restrict Dr. Mathews' privileges. Where a hospital 

board has ultimate decision making authority, "[s]imply making a 

peer review recommendation does not prove the existence of a 

conspiracy [among the hospital and its staff]; there must be 

something more such as a conscious commitment by the medical 

staff to coerce the hospital into accepting its recommendation." 

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 recommendations from 

the medical staff and the radiologists were pleased with [the 

hospital's] ultimate decision is, standing alone, insufficient to 

infer an antitrust conspiracy."). Dr. Mathews has not raised a 

genuine issue of material fact as to whether Orthopedic 

Associates or Drs. Rothacker, Westphal, Shertzer, Lyet, Argires 

and Hoke coerced or lobbied the Board to restrict Dr. Mathews' 

privileges. 

 Dr. Mathews views the activities of the Rothacker 

Committee as evidence of a campaign of its members, Drs. 

Rothacker, Westphal, and Lyet, to restrict his privileges. The 

Rothacker Committee's recommendation was made eighteen 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 an 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 of 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. All the 

defendants abstained from voting, and Dr. Mathews has presented 

no evidence that defendants attempted to influence or lobby the 

Board. 
 Dr. Mathews argues that the contractual relationship 

between Lancaster General and Orthopedic Associates relating to 

the MidAtlantic Orthopedic Institute supports an inference that 

Orthopedic Associates and members of Orthopedic Associates, Drs. 

Rothacker, Westphal, and Shertzer, unduly influenced the Board. 

Although a contractual relationship might support an inference 

that Orthopedic Associates may have had the power to 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 improve 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 restricting staff 

privileges to doctors who have achieved a predetermined level of 

medical competence, a hospital will enhance its reputation and 

the quality of medical care it delivers. Thus such action is 

pro-competitive"), cert. denied, 470 U.S. 1060 (1985); Oksanen v. 

Page Memorial Hosp., 945 F.2d at 709 ("[T]he peer review process, 

by policing competence and conduct of doctors, can enhance 

competition."). We are reluctant to draw inferences of an 

antitrust conspiracy from ambiguous circumstantial evidence in 

cases where the challenged activity promotes competition. 

Evidence of conduct, which is "as consistent with permissible 

competition as with illegal conspiracy does not, without more, 

support even an inference of conspiracy." Matsushita Electric 

Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 597 

n.21 (1986); see also Alvord-Polk, Inc. v. F. Schumacher & Co., 

37 F.3d at 1001. "[T]here must be evidence that tends to exclude 

the possibility of independent action." Monsanto Co. v. SprayRite Service Corp., 465 U.S. 752, 768 (1984). 

 Substantial evidence supports the conclusion that the 

Board voted to restrict Dr. Mathews' privileges for legitimate 

health care reasons. The Board relied on the report of the 

independent reviewer, Dr. Wilson, in addition to Lancaster 

General's own internal review procedure conducted by the 

Rothacker Committee. Although Dr. Mathews has produced some 

circumstantial evidence of an economic motivation on the part of 

defendants, the evidence he refers to is equally consistent with 

permissible competition and the promotion of quality patient 

care. Dr. Mathews has not produced evidence that tends to 

exclude the possibility that the Board acted independently. 

Under these circumstances, we are reluctant to infer an antitrust 

conspiracy, and we believe the district court correctly granted 

summary judgment to Lancaster General and the individual 

defendants. Cf. Willman v. Heartland Hospital East, 34 F.3d 605, 

611 (8th Cir. 1994) ("the limitation and eventual termination of 

[plaintiff's] staff privileges . . . is as consistent 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 sufficient evidence 

of concerted action on the part of Lancaster General and Columbia 

Hospital to survive summary judgment. While it is true that 
Lancaster General and Columbia were conducting merger 

negotiations at the time of Dr. Mathews' application for a 

renewal of privileges, the undisputed facts establish that 

Columbia reduced Dr. Mathews' privileges from courtesy privileges 

to temporary privileges in the course of its normal staff review 

processes and in accordance with its own bylaws. Because 

Columbia's reduction of Dr. Mathews' privileges was as consistent 

with the lawful motive of following its bylaws as with an 

anticompetitive motive, we believe the evidence does not support 

an inference of an antitrust conspiracy. Id. We will affirm the 

district court's grant of summary judgment to Columbia Hospital 

as well. 

 B. Antitrust Injury 

 The district court entered summary judgment for 

defendants on the alternative ground that Dr. Mathews had not 

produced evidence raising an issue of material fact as to the 

existence of an antitrust injury. In antitrust cases, a 

plaintiff must prove "injury of the type the antitrust 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 competition, not 

competitors, [a court] must analyze the antitrust injury question 

from the viewpoint of the consumer." Id. at 1241. "An antitrust 

plaintiff must prove that challenged conduct affected 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 (1992). 

 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 because 

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 restrictions on Dr. 

Mathews' privileges do not completely extinguish Dr. Mathews' 

ability to provide low cost services, but merely curtail his 

ability to perform spine surgery at Lancaster General. We 

believe the record supports the district court's conclusions. 

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 should have 

awarded them attorneys fees under the Health Care Quality 

Improvement Act's fee shifting provision, 42 U.S.C.  11113. 

They assert the award of attorneys' fees to prevailing defendants 

is mandatory under the Act. We disagree. "[T]he appropriate 

standard of review of a district court's decision regarding 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. Ricks, 31 F.3d 
1478, 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, unreasonable, 

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 denied 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 established for us 

to say that plaintiff's claim was frivolous, unreasonable, 

without foundation, or in bad faith." It also noted that "[n]ot 

all of the facts were known to plaintiff at the filing of this 

case," and "[p]laintiff's state law claims were dismissed without 

prejudice." See Order, Mathews v. Lancaster Gen. Hosp., Nos. 93- 

6774, 94-4647 (June 9, 1995). 

 We believe that "it is important . . . [to] resist the 

understandable temptation to engage in post hoc reasoning by 

concluding that, because a plaintiff did not ultimately prevail, 

his action must have been unreasonable or without foundation." 

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 conclude the 

district court did not abuse its discretion in refusing to award 

attorneys' fees. 

 VI. Conclusion 

 For the foregoing reasons, we will affirm the judgment 

of the district court.