12Samuel v. Herrick MemorialHosp., et al.No. 99-1462Obstetricians and Gynecologists concluded that plaintiff hadexercised "poor judgment" and had failed to "demonstrateforesight to anticipate complications of care."Id.TheAmerican College of Obstetricians and Gynecologists reportalso stated that plaintiff's "failure to recognize critical signs offetal and maternal compromise prevents him fromrecognizing the need to seek assistance of from providingoptimal obstetric care based on recognized, publishedstandards of care."Id.Finally, the American College ofObstetricians and Gynecologists concluded that "[a]ttempts torehabilitate [plaintiff] within Herrick Memorial Hospital cannot succeed due to lack of patient volume, acuity of care, andpersonal-social relationships previously established at thishospital."Id.Based on this report, we believe that anydamage that may be done to plaintiff's professional reputationis substantially outweighed by the harm that defendants andthe public would suffer if plaintiff continues to practicemedicine without additional training. Because the balance ofharms weighs against granting the preliminary injunction, andbecause plaintiff is not likely to prevail on the merits, weconclude that the district court abused its discretion when itgranted the preliminary injunction in this case.We have interlocutory appellate jurisdiction in this caseonly to review the propriety of the injunction under 28 U.S.C.§ 1292(a)(1), not to review on an interlocutory basis thedenial of defendants' motion for summary judgment.Accordingly, the preliminary injunction is dissolved.1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0026P (6th Cir.)File Name: 00a0026p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________DONALDR.SAMUEL,M.D.,Plaintiff-Appellee,v.HERRICKMEMORIALHOSPITAL,LENAWEEHEALTHALLIANCE,DR.LAURIEBARKWAY,DAVIDHICKMAN,DR.MICHAELSAMMARCO,MICHAELMIHORA,JOHNROBERTSTAD,HAROLDEASTONand LINDAYIELDING,Defendants-Appellants.;>1No. 99-1462Appeal from the United States District Courtfor the Eastern District of Michigan at Ann Arbor.No. 99-60140—George C. Steeh, District Judge.Argued: June 9, 1999Decided and Filed: January 18, 2000Before: MERRITT, DAUGHTREY, and MOORE, CircuitJudges.2Samuel v. Herrick MemorialHosp., et al.No. 99-1462_________________COUNSELARGUED:David A. French, MILLER, CANFIELD,PADDOCK & STONE, Ann Arbor, Michigan, forAppellants. Robert A. Maxwell, DENISON & MAXWELL,Bloomfield Hills, Michigan, for Appellee._________________OPINION_________________MERRITT, Circuit Judge. This appeal from a grant of apreliminary injunction concerns the suspension of staffprivileges to plaintiff, Donald Samuel, M.D., anobstetrician/gynecologist, by defendant Herrick MemorialHospital. After Herrick Memorial suspended plaintiff's staffprivileges, he moved the district court for a preliminaryinjunction enjoining the suspension. The district courtgranted the injunction, thereby reinstating plaintiff's privilegeswith certain conditions. Defendants appealed the grant of theinjunction to this Court. This Court stayed enforcement of theinjunction by order dated May 14, 1999. The case comes toour panel from the motions docket and we heard oralargument on the motion to stay. For the reasons that follow,we now vacate the injunction and remand the case to thedistrict court for further proceedings.I.Plaintiff is an African-American physician with a privatepractice in Tecumseh, a small community between Toledo,Ann Arbor and Detroit. He attended medical school inToledo and completed his residency in obstetrics andgynecology at a hospital in Michigan. He set up a practice inTexas and, in 1990, he was recruited by Herrick Memorial tobe its staff OB/GYN because Tecumseh did not have one inthe community. In 1992, plaintiff set up a private practice,No. 99-1462Samuel v. Herrick MemorialHosp., et al.11interfere with plaintiff's business relationships. As explainedabove, we do not believe plaintiff has shown a likelihood ofsuccess on the merits of the underlying claims that form thebases for his conspiracy claim. Nor has plaintiff stated anyspecifics as to how defendants conspired against him.Basically, plaintiff has alleged that defendants conspired todrive him out of business either because of his race and/orbecause they did not want any competition in the obstetricsand gynecology area. Plaintiff offers little in the way ofsupport for these conspiracy theories except the hiring of Dr.Sammarco and the results of the peer review process. Asexplained above, thus far plaintiff has not put forth any factsdemonstrating an improper motive behind these actions.Therefore, we do not find that plaintiff has demonstrated alikelihood of success on the merits as to a conspiracyunderlying any of these claims.We also believe that the district court erred when itdetermined that the balance of harms in this case weighs infavor of granting the preliminary injunction. The districtcourt granted the preliminary injunction because it determinedthat the sanctions imposed by the hospital would causeirreparable harm to the plaintiff's professional reputation inthe community.SeeOrder Granting Preliminary Injunctionat 7 ("[P]laintiff is facing not only financial ruin andinsolvency if injunctive relief is not granted, but thedestruction of his professional reputation and with it, the lossof any chance to rebuild his now burgeoning medicalpractice.") In reaching its decision, however, the district courtfailed to give sufficient weight to the harm that defendantsand the public would suffer if the plaintiff is allowed tocontinue to practice obstetrics and gynecology without firstreceiving further medical training.Indeed, the results of the on-site review that was performedby the American College of Obstetricians and Gynecologistsshow that plaintiff's poor judgment and clinical deficiencieshave endangered his patients on several occasions. Report ofSite Visit at 30. In its report, the American College of10Samuel v. Herrick MemorialHosp., et al.No. 99-1462Gen. Hosp., 229 Conn. 592, 643 A.2d 233 (1994);LewisburgComm. Hosp., Inc. v. Alfredson, 805 S.W.2d 756 (Tenn.1991);Wong v. Garden Park Comm. Hosp., Inc., 565 So. 2d550 (Miss. 1990);Bouquett v. St. Elizabeth Corp., 43 Ohio St.3d 50, 558 N.E.2d 113 (1989);Bock v. John C. LincolnHosp., 145 Ariz. 432, 702 P.2d 253 (Ariz. Ct. of App. 1985);Spencer v. Community Hosp. of Evanston, 87 Ill. App. 3d214, 408 N.E.2d 981 (1980);Margolin v. Morton F. PlantHosp. Ass'n, Inc., 348 So. 2d 57 (Fla. App. 1977).Michiganfollows an even more stringent rule that does not allow anyreview, even to ensure that the methods put forth by hospitalfor peer review are followed.See, e.g.,Sarin v. SamaritanHealth Center, 176 Mich. App. 790, 795, 440 N.W.2d 80(1989);accordZipper v. Health Midwest, 978 S.W.2d 398(Mo. App. 1998);Winston v. American Med. Int'l, Inc., 930S.W.2d 945 (Tex. Civ. App. – Houston 1997). The thirdoption, followed by a small but apparently growing numberof states, allows judicial review to ensure that the hospital'sdecision was not arbitrary and capricious or otherwiseunreasonable. The laws in these jurisdictions require that thehospital's decision to suspend or otherwise limit a physician'saccess to the hospital facilities be supported by "some"evidence or allow some further analysis beyond review onlyof adherence by the hospital to its procedures.See, e.g.,Cooper v. Delaware Valley Med. Center, 539 Pa. 620, 654A.2d 547 (1995);Zoneraich v. Overlook Hosp., 212 N.J.Super. 83, 514 A.2d 53 (1986).In light of Michigan's flat rule against judicial intervention,we conclude that the district court erred in finding alikelihood of success on the merits on the tortious interferencewith contractual relations and business relationships claim.4.Conspiracy ClaimPlaintiff's conspiracy claim includes allegations of aconspiracy to unreasonably restrain plaintiff from practicingmedicine in the community, a conspiracy to discriminateagainst plaintiff based on his race and a conspiracy toNo. 99-1462Samuel v. Herrick MemorialHosp., et al.3with financial backing by Herrick Memorial, and he wasextended staff privileges at Herrick Memorial. In 1996 hebecame Chief of Staff at the hospital.In 1996, defendant Lenawee Health Alliance purchasedHerrick Memorial and nearby Emma Bixby MemorialHospital, the only two hospitals in Tecumseh, and runs themunder a joint operating agreement. Plaintiff was a vigorousopponent of this joint venture and claims that the hospital hasbeen trying to drive him out ever since. After the purchase,Lenawee Health Alliance started looking for anotherOB/GYN, despite plaintiff's protests that the area could notsupport another OB/GYN. Over that protest, defendant Dr.Sammarco, who is white, was hired as the staff OB/GYN atHerrick Memorial.In October 1998 one of plaintiff's patients died fromhemorrhaging after a caesarean delivery. The death wasplaintiff's first maternal death in 10 years of practice. Afterthe death, the hospital required him to consult with anotherphysician, in this case Dr. Sammarco, the only other OB/GYNat Herrick Memorial, upon admitting a patient to the hospital.This monitoring arrangement went on for four months, duringthe pendency of the hearing process required by the hospital'sbylaws, and continued until this Court stayed enforcement ofthe injunction and reimposed the suspension of privileges inMay at the request of defendants.The hospital's Ad Hoc Hearing Committee held a hearingon January 27, 1999, at which two physicians testified as toplaintiff's competence and stated that plaintiff was not toblame for the death. On February 3, 1999, the Ad HocHearing Committee recommended to the Medical ExecutiveCommittee that the monitoring be discontinued pending theresults of an external review to be conducted by the AmericanCollege of Obstetricians and Gynecologists. The MedicalExecutive Committee rejected the Ad Hoc Committee'srecommendation and the monitoring requirement continued.4Samuel v. Herrick MemorialHosp., et al.No. 99-1462In February 1999, three reviewers from the AmericanCollege of Obstetricians and Gynecologists conducted an onsite review of Herrick Memorial's obstetrics unit, at thehospital's request. One reviewer was the Director of MedicalEducation in the Department of Obstetrics and Gynecology atChildren's Hospital in Buffalo, New York, and another, anAfrican-American, was from the Department of Obstetricsand Gynecology at the University of Chicago. The thirdreviewer was a medical writer and computer specialist. Thereview included interviews with staff members and a reviewof some of plaintiff's case charts, although the reviewers knewplaintiff only as "Physician A."At the exit interview with hospital staff, the independentreviewers issued a preliminary report recommending thatplaintiff undergo a six-month, intensive training program atthe residency level before he be allowed to continue thepractice of medicine. On March 4, 1999, based on thereviewers' preliminary report given at the exit interview, theExecutive Committee recommended suspension of plaintiff'sprivileges pending his completion of a six-month remedialcourse in obstetrics/gynecology in a program approved by theExecutive Committee. Plaintiff had thirty days to apply forsuch a program. Failure to comply with these conditionswould result in termination of his privileges.The next day, March 5, 1999, plaintiff filed a complaintalleging discrimination on the basis of race, antitrustviolations and state law tort and contract claims. Plaintiffalso moved for a preliminary injunction to lift the suspension,which was granted in part by the district court withinstructions to defendants to institute monitoring proceduresfor plaintiff instead of suspending his privileges. Specifically,the complaint alleges (1) violations of 42 U.S.C. § 1981 basedon defendants' interference with Samuel's business contractsand expectancies based on race (Count I), (2) that defendantsacted in concert to revoke his staff privileges and eliminateOB/GYN competition within Lenawee County in violation ofthe Sherman Antitrust Act, 15 U.S.C. §§ 1etseq.(Count II),No. 99-1462Samuel v. Herrick MemorialHosp., et al.91Florida has eliminated the distinction between private and publichospitals for purposes of judicial reviewability by legislating that ahospital must promulgate bylaws and those bylaws create a bindingcontract between the physician and the hospital.breached its contract with him and he is not asking for aspecific review of whether the hospital followed its ownprocedures in suspending him, he is actually seeking judicialintervention into the decision of a private hospital to suspendhis staff privileges. A decision of this nature is not propermatter for judicial intervention and consideration of his claimwould make a "mockery of the rule that prohibits judicialreview of such decisions by private hospitals."Id.at 794, 440N.W.2d at 83.The judicial reviewability of medical staffing decisions hasbeen debated and continues to be debated in most states.Most physicians are not employed by a hospital but insteadare independent contractors who are granted privileges to usea hospital, including its staff and equipment. A hospital'sprocedures for granting or renewing privileges and thestandards by which a doctor must abide are generallyembodied in the hospital's bylaws.Most jurisdictions distinguish between private and publichospitals, with the staffing decisions of public hospitalssubject to the due process and equal protections guaranteesunder the United States Constitution and the staffingdecisions of private hospitals generally unreviewable orsubject to very limited judicial review.1In addition, the levelof judicial review may differ between decisions to grantprivileges as an initial matter and decisions to limit orsuspend existing privileges.The rule generally forbidding judicial review of staffingdecisions by private hospitals appears to be the majority viewin the United States, although some jurisdictions allowlimited judicial review to ensure only that the hospitalfollowed its own procedures.See,e.g., Owens v. New Britain8Samuel v. Herrick MemorialHosp., et al.No. 99-1462alleged, plaintiff is complaining of nothing more than adecrease or potential decrease in patients from competition.Based on the facts in the record at this time, we do not see alikelihood on the merits of the antitrust claim.3.Tortious Interference with Contractual Relations andBusiness Relationships ClaimAs to the tortious interference claim, the claim on which thedistrict court found the most chance of success by plaintiff,Michigan law is very clear that claims arising from the peerreview process are not judicially reviewable. The districtcourt therefore did not have jurisdiction to review this claim.Under Michigan law, a private hospital is empowered toappoint and remove its members at will without judicialintervention and has the right to exclude any doctor frompracticing therein.Muzquiz v. W.A. Foote Mem. Hosp., Inc.,70 F.3d 422, 430 (6th Cir. 1995);Long v. Chelsea CommunityHosp., 219 Mich. App. 578, 586, 557 N.W.2d 157, 161(1996);Sarin v. Samaritan Health Center, 176 Mich. App.790, 795, 440 N.W.2d 80 (1989);Veldhus v. Central Mich.Community Hosp., 142 Mich. App. 243, 246, 369 N.W.2d478, 479-80 (1985);Hoffman v. Garden City Hosp.-Osteopathic, 115 Mich. App. 773, 778-79, 321 N.W.2d 810(1982).The only exception to this nonreviewability rule ariseswhen defendants have been accused of violating state orfederal law, such as state or federal discrimination laws. Thedistrict court was free to review the federal antitrust anddiscrimination claims, as we did above, but it was withoutjurisdiction to review plaintiff's claim of tortious interferencewith contractual relations and business relationships, as arewe, because it would necessarily involve a review of thedecision to suspend plaintiff and the methods or reasonsbehind that action, which is clearly prohibited under Michiganlaw as improper interference with the hospital's decisions andthe peer review process.SeeSarinat 791-92, 440 N.W.2dat 80. Although plaintiff does not allege that the hospitalNo. 99-1462Samuel v. Herrick MemorialHosp., et al.5(3) a state law claim of tortious interference with businessexpectancy and relationships (CountIII), (4) existence of acivil conspiracy among defendants to (a) unreasonablyrestrain plaintiff from practicing medicine, (b) interfere withcontracts with patients and (c) discriminate based on race(Count IV), (5) defamation regarding statements aboutplaintiff's ability to practice medicine and his mental health(Count V), (6) a violation of the due process rights ofreasonable notice and a hearing prior to the deprivation of hisproperty interest to practice medicine (Count VI).After a hearing held March 8, the district court granted thepreliminary injunction in part and ordered continuation of themonitoring process. On March 15, defendants filed a motionfor dismissal of the complaint or summary judgment. At ahearing held March 16, the district court ordered continuationof the monitoring process.On April 14, 1999, the court dismissed the defamation(Count V) and due process (Count VI) claims pursuant toRule 12(b)(6), but refused to dismiss the other claims or togrant defendants' motion for summary judgment, noting thatit believed the state law claim for tortious interference to bethe strongest claim. In a separate order issued the same day,the district court granted the preliminary injunction in part,because (1) it found that plaintiff had some possibility ofsucceeding on the merits with regards to his tortiousinterference with business expectations claim and (2) it foundthat plaintiff would be irreparably injured in his medicalcareer by the suspension. The district court ordered that themonitoring remain in place to ensure the safety of thecommunity. On April 26, 1999, the district court denied astay of the injunction pending appeal. At a May 3 statusconference, the district court approved the monitoring planproposed by plaintiff, which called for plaintiff to confertelephonically with several doctors in other hospitals on eachadmission. Defendants did not offer any counterproposalregarding monitoring and maintained thatanymonitoring was6Samuel v. Herrick MemorialHosp., et al.No. 99-1462unsatisfactory and unethical in light of the magnitude ofplaintiff's alleged deficiencies.Defendants appealed the denial of the stay of the injunctionpending appeal and filed an interlocutory appeal of the denialof their summary judgment motion. This Court stayedenforcement of the injunction, thereby reimposing thesuspension of plaintiff's staff privileges at the hospital, butalso set the appeal on an expedited basis.II.When ruling on a motion for preliminary injunction, thedistrict court considers four factors: (1) whether the movantis likely to prevail on the merits; (2) whether the movantwould suffer irreparable injury if the court does not grant theinjunction; (3) whether a preliminary injunction would causesubstantial harm to others and (4) whether a preliminaryinjunction would be in the public interest.Glover v. Johnson,855 F.2d 277, 282 (6th Cir. 1988). We review the districtcourt's determination under an abuse of discretion of standard.Id.Likelihood of Success on the MeritsWe agree with the district court that there is minimalevidence in the record to demonstrate alikelihoodof successon the merits of plaintiff's claims. Order Granting PreliminaryInjunction at 13 n.2 ("Plaintiff has not argued, at least notwith any serious conviction, that any of his other claims[other than the tortious interference claim] are likely tosucceed on the merits."). The facts alleged in the complaintare barely adequate to survive a motion to dismiss on thefederal discrimination and antitrust claims, although aftermore discovery it may be possible for plaintiff to adducefurther evidence on these claims.No. 99-1462Samuel v. Herrick MemorialHosp., et al.71.Racial DiscriminationPlaintiff alleges that Herrick Memorial discriminatedagainst him based on race in violation of 42 U.S.C. § 1981.However, no specific examples relating to discriminationagainst him are recited in his complaint. Plaintiff recites factsconcerning possible racial discrimination by HerrickMemorial against a third party who applied for a job at thehospital, but offers neither actual nor circumstantial evidenceregarding conduct against him. The only factual allegationscited to support his claim are that the hospital hired Dr.Sammarco, who is white, and his bare allegation that he wasreviewed and suspended after a patient death whilenonminority doctors were treated differently under similarcircumstances. Based on these factual allegations, we do notsee a likelihood of success on the merits.2.Antitrust ClaimAs to the antitrust claim, plaintiff contends that the hospitalwishes to drive him out of business because it would derivegreater revenue from patients seeing Dr. Sammarco, who is astaff physician, instead of plaintiff, who in private practiceand has hospital privileges. In other words, the hospital firsthired Dr. Sammarco and then used the peer review processimproperly to restrain access to the market for obstetric andgynecological services. First, at least the individualdefendants may be immune from antitrust liability for aproperly conducted peer review process. The Health CareQuality improvement Act of 1986, 42 U.S.C. §§ 11101etseq., provides antitrust immunity for participants in properlyconducted peer review processes.Id.§ 11111;see also Lie v.St. Joseph Hosp. of Mt. Clemens, Mich., 964 F.2d 567, 570(6th Cir. 1992). Second, plaintiff has related virtually no factsthat demonstrate that there was any anticompetitive motivebehind the hiring of Dr. Sammarco or plaintiff's suspension.The allegations are based only on speculation of themotivation behind these actions. Absent the assumptionsabout the motives behind the conduct that plaintiff has