PUBLISH UNITED STATES COURT OF APPEALS Filed 11/29/96 TENTH CIRCUIT

___________________________ ARLENE M. BROWN, M.D.; FAMILY PRACTICE ASSOCIATES, P.C., Plaintiffs-Appellees,

v. PRESBYTERIAN HEALTHCARE SERVICES; VALERIE MILLER; VICKIE WILLIAMS, D.O., Defendants-Appellants, and SIERRA BLANCA MEDICAL ASSOCIATES, P.A.; GARY JACKSON, D.O., Defendants.

------------------------------------ ARLENE M. BROWN, M.D., FAMILY PRACTICE ASSOCIATES, P.C., Plaintiffs-Appellants,

v. PRESBYTERIAN HEALTHCARE SERVICES, VALERIE MILLER, SIERRA BLANCA MEDICAL ASSOCIATES, P.A., VICKIE WILLIAMS, D.O., GARY JACKSON, D.O., Defendants-Appellees. No. 95-2293

No. 96-2013

___________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT* The Honorable Paul H. Roney, Senior United States Circuit Judge for the

Eleventh Circuit, sitting by designation.

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FOR THE DISTRICT OF NEW MEXICO (D.C. No. CIV-93-719-JP)

___________________________ Thomas C. Bird (David W. Peterson of Keleher & McLe od, P.A.; and Phil Krehbiel of Krehbiel, Bannerman, Horn & Hisey, P.A. , Albuquerque, New Mexico, with him on the briefs) of Keleher & McLeod , P.A., Albuquerque, New Mexico, for Plaintiffs-Appellees. Bruce Hall (Edward Ricco and Theresa W. Parrish wit h him on the briefs) of Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquer que, New Mexico, for Defendants-Appellants.

___________________________ Before BRORBY, RONEY , * and LOGAN , Circuit Judges.

___________________________ BRORBY , Circuit Judge.

___________________________ Dr. Arlene Brown, a family physician, and her profe ssional association, Family Practice Associates, P.C. (hereinafter colle ctively referred to as "Dr. Brown"), brought suit against Presbyterian Healthcare Services, Valerie Miller, Vickie Williams, D.O., Sierra Blanca Medical Associ ates, P.A., and Gary Jackson, D.O., seeking injunctive relief and damage s for violation of Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2 (199 4), unreasonable restraint of trade and unfair trade practices in violation of Se ction 57 of the New Mexico Annotated Statutes, bad faith breach of contract, i ntentional interference with1 Defendant Presbyterian Healthcare Services, a nonprofit New Mexico

corporation, manages and operates Lincoln County Me dical Center under an agreement with Lincoln County, New Mexico.

-3- contract, defamation, and prima facie tort. Dr. Brown's causes of action arose from the revocation of her obstetrical hospital sta ff privileges by Lincoln County Medical Center, 1 and from the hospital's subsequent report of this revocation to the National Practitioner Data Bank under the categ ory of "Incompetence/ Malpractice/Negligence." According to Dr. Brown, t he defendants' "anticompetitive motives" were at the heart of thes e actions.

After a three week jury trial, the jury rendered a verdict in favor of Dr. Brown on the defamation claim, tortious interferenc e with contract claim, and certain of her antitrust claims. Thereafter, the d istrict court set aside the jury's awards of damages on the tortious interference withcontract claim, and the jury's award of punitive damages against Dr. Williams on t he antitrust claims. Dr. Brown and Defendants Presbyterian Healthcare Servic es, Ms. Miller and Dr. Williams appeal from the district court's order and amended judgment.-4-

I. Factual Background-5-

Dr. Arlene Brown, a Board-certified family physicia n, began practicing family medicine in Ruidoso, New Mexico, in 1983. D r. Brown joined the medical staff of Lincoln County Medical Center, and in 1992 she held clinical privileges at the hospital in obstetrics and other areas. Dr. Vickie Williams, a physician specializing in obstetrics and gynecology in Ruidos o, is an economic competitor of Dr. Brown.

In early 1992, Dr. Williams participated in an info rmal peer review of three patients treated by Dr. Brown. Dr. Williams expres sed concerns about the quality of care reflected in the patients' charts and prepa red typewritten comments on the charts. Valerie Miller, Lincoln County Medical Cen ter's Administrator, then referred the charts to specialists outside the hosp ital for review. The outside reviewing physicians' comments were submitted to Li ncoln County Medical Center’s Executive Committee. At a meeting of the Executive Committee on July 13, 1992, Dr. Brown agreed to a requirement to cons ult with an obstetrics specialist in treating high-risk obstetrical patien ts.

In February 1993, Valerie Miller instituted formal peer review proceedings against Dr. Brown by sending a complaint to the Med ical Staff Executive Committee, charging Dr. Brown with failure to abide by the consultation2Dr. Brown subsequently appealed the Board of Trus tees' decision.

However, on May 20, 1993, the Board's Appeal Panel affirmed the Board of Trustees' decision, with one minor modification. T he modification allowed Dr. Brown to reapply for privileges after fulfilling ce rtain training requirements.

3 The National Practitioner Data Bank is an organiz ation created under the Health Care Quality Improvement Act to collect info rmation on physicians, including reports of adverse peer review actions. See 45 C.F.R. Part 60 (1995). "Each health care entity must report to the Board o f Medical Examiners ... [a]ny professional review action that adversely affects t he clinical privileges of a physician." 45 C.F.R. § 60.9(a). The Board of Med ical Examiners must in turn report this information to the National Practitione r Data Bank. 45 C.F.R. § 60.9(b). -6- agreement. The Executive Committee instituted form al peer review proceedings against Dr. Brown by appointing a panel of three physicians to conduct a hearing on the complaint. At the hearing in April 1993, th e panel reviewed the charts of two patients treated by Dr. Brown and heard testimo ny from Dr. Williams and Dr. Brown. The next day, the hearing panel issued its report, concluding Dr. Brown breached her agreement to obtain appropriate consul tation and recommending removal of Dr. Brown's obstetrical privileges. The reafter, the Medical Executive Committee approved the panel's recommendation and L incoln County Medical Center's Board of Trustees adopted the recommendati on. 2

Following the Board of Trustees' disciplinary actio n, Lincoln County Medical Center submitted a report to the National P ractitioner Data Bank concerning the revocation of Dr. Brown's obstetrica l privileges. 3 Glenda Perry,-7-

the hospital's medical staff coordinator, prepared the report in collaboration with Ms. Miller. One blank on the report called for ins ertion of an "Adverse Action Classification Code." Ms. Perry and Ms. Miller settled on the code entitled "Incompetence/ Malpractice/ Negligence."

When Dr. Brown received a copy of the hospital's data bank report, she submitted a report of her own to the National Pract itioner Data Bank stating Lincoln County Medical Center never found her negli gent, incompetent or guilty of malpractice. The National Practitioner Data Ban k then notified Lincoln County Medical Center of Dr. Brown's objection to t he report, and provided the hospital with an opportunity to revise its report. However, the hospital elected not to amend the data bank report.

Although unrelated to the revocation of Dr. Brown's obstetrical privileges, in 1992 a family practice physician named Dr. Mark Reib contacted a Presbyterian Healthcare Services recruiter to discu ss family medicine practice opportunities in Ruidoso, New Mexico. When Dr. Rei b expressed an interest in joining Dr. Brown’s practice, the recruiter informe d Dr. Reib the hospital would only offer him a financial recruitment package if h e were to go to work for4Specifically, the jury entered the following awar ds of damages: (1)

$112,000.00 against Ms. Miller and Dr. Williams on the antitrust claims; (2) $30,000.00 against Ms. Miller on the defamation cla im; (3) $7,500.00 in compensatory damages and $75,000.00 in punitive dam ages against Presbyterian Healthcare Services on the intentional interference with contract claim; (4) $75,000.00 in punitive damages against Ms. Miller o n the antitrust and defamation claims; and (5) $75,000.00 in punitive d amages against Dr. Williams on the antitrust claims. The jury found in favor o f defendants Dr. Jackson and Sierra Blanca Medical Associates with respect to al l claims against them.

5 See 15 U.S.C. § 15(a) (1994).

-8- Lincoln County Medical Center or in direct competit ion with Dr. Brown. Dr. Reib chose not to join Dr. Brown's medical practice

.

II. Trial and Subsequent Procedural History In March 1995, the trial of this action commenced b efore a jury. Almost three weeks later, the jury returned a special verd ict in Dr. Brown's favor on her defamation claim, intentional interference with con tract claim, and on certain of her antitrust claims. 4 The district court entered judgment in accordance with the jury’s findings, trebling, as required by law, 5 the antitrust damages against Ms. Miller and Dr. Williams. Thereafter, pursuant to F ed. R. Civ. P. 50(b) and 59(c), the defendants filed a motion for judgment as a matter of law or to alter or amend the judgment or for a new trial. In a comprehensiv e and detailed "Memorandum Opinion and Order," the district court set aside th e jury’s award of compensatory6The court set aside the former pursuant to Fed. R . Civ. P. 50(b), and the

latter pursuant to Fed. R. Civ. P. 59(e).

-9- and punitive damages against Presbyterian Healthcar e Services on the intentional interference with contract claim, and the jury's aw ard of punitive damages against Dr. Williams on the antitrust claim. 6 The district court rejected all of the defendants' remaining arguments and entered an amen ded judgment in conformity with its opinion.

Dr. Brown appeals the district court's amended judg ment, raising two issues: (1) whether the district court erred in va cating the compensatory and punitive damages awards for tortious interference w ith contract and (2) whether the district court erred in vacating the punitive d amages award against Dr. Williams. The appeal of Presbyterian Healthcare Se rvices, Ms. Miller and Dr. Williams raises four issues: (1) whether the distr ict court erred in determining the defendants were not immune as a matter of law from damages resulting from the revocation of Dr. Brown's obstetrical privileges; ( 2) whether the district court erred in determining the defendants were not immune as a matter of law from damages resulting from the data bank report; (3) wh ether the district court erred in denying the defendants' motion for judgment as amatter of law on the merits of Dr. Brown’s antitrust claims; and (4) whether the d istrict court erred in denying-10-

the defendants' motion for judgment as a matter of law on the merits of Dr. Brown's defamation claim. After thoroughly reviewi ng the parties' briefs, the district court's Memorandum Opinion and Order, and all relevant statutes and case law, we conclude the district court erred in settin g aside the jury's awards of damages on Dr. Brown's intentional interference with contract claim. However, with respect to the remaining issues raised by the parties on appeal, we find the district court's rulings were proper and in accordance with law.

III. Dr. Brown's Appeal Dr. Brown first contends the district court erred i n vacating as a matter of law the jury's award of compensatory and punitive d amages against Presbyterian Healthcare Services on the tortious interference wi th contract claim. The Court reviews the district court's order granting judgment as a matter of law de novo, applying the same standard as the district court. Thompson v. State Farm Fire & Casualty Co. , 34 F.3d 932, 941 (10th Cir. 1994). The legal sta ndard for granting judgment as a matter of law is identical to the sta ndard for granting summary judgment under Fed. R. Civ. P. 56. Pendleton v. Conoco, Inc., 23 F.3d 281, 286 (10th Cir. 1994). When applying this standard, a c ourt is to examine the factual record and reasonable inferences therefrom in the l ight most favorable to the party opposing the motion for summary judgment or judgment as a matter of law. Wolf-11-

v. Prudential Ins. Co., 50 F.3d 793, 796 (10th Cir. 1995) (citing Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). Judgment as a matter of law should be affirmed onlyif the evidence is insufficient to permit a jury to properly return a verdict in the opposing party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1985).

In the present case, the jury found Presbyterian He althcare Services liable for tortious interference with contract and awarded Dr. Brown $7,500.00 in compensatory damages and $75,000.00 in punitive dam ages on this claim. In its Memorandum Opinion and Order, however, the districtcourt vacated the award of compensatory damages, concluding Dr. Brown had fail ed to present adequate proof of actual damages on this claim. Since the p unitive damages award for tortious interference "was connected only to the ju ry's finding that [Presbyterian Healthcare Services] intentionally interfered with plaintiffs' contractual relations," the district court also set aside the $75,000.00 pu nitive damages award.

Dr. Brown claims the district court erred in vacati ng the awards of damages for tortious interference with contract because the record contains sufficient evidence to support the jury's awards. Presbyterian Healthcare Services, on the other hand, contends Dr. Brown did not establish damages for tortious-12-

interference with "reasonable certainty" and theref ore, the district court properly set aside the jury's awards of damages on this clai m. As noted by the district court, damages that are based on conjecture, specul ation, or guesswork are not recoverable. Smith v. Babcock Poultry Farms, Inc., 469 F.2d 456, 459 (10th Cir. 1972) (citing United States v. Griffith, Gornall & Carman, Inc., 210 F.2d 11 (10th Cir. 1954)). However, the fact damages are difficu lt to ascertain will not necessarily bar recovery. Id. Under New Mexico law, which is applicable in the present case, "[t]he lack of certainty that will pr event a recovery is uncertainty as to the fact of damages, not as to the amount." Camino Real Mobile Home Park Partnership v. Wolfe, 891 P.2d 1190, 1201 (N.M. 1995). Damages need not be computed with "mathematical certainty" and recovery will not be denied where the evidence "afford[s] a reasonable basis for esti mating [plaintiff's] loss." Archuleta v. Jacquez , 704 P.2d 1130, 1134 (N.M. Ct. App. 1985). In rev iewing a jury's award of damages, the court should sustain the award unless it is clearly erroneous or there is no evidence to support the aw ard. Hudson v. Smith , 618 F.2d 642, 646 (10th Cir. 1980).

Here, Dr. Brown's alleged damages for intentional i nterference with contract stem from Presbyterian Healthcare Services ' interference with Dr. Brown's attempts to hire Dr. Mark Reib. In an effo rt to prove the hospital's7The court notes the credentials and background of Dr. Frey and Dr. Reib are strikingly similar. Dr. Frey completed a famil y practice residency in 1983, while Dr. Reib completed a family practice residenc y in 1984. Following completion of their respective residency programs, Dr. Frey and Dr. Reib each spent three to four years in the Navy. Apparently, the two doctors were stationed together on Guam and became friends. Dr. Frey and Dr. Reib each entered a private family medicine practice after their respec tive stints in the Navy.

-13- interference with Dr. Reib caused her damages, Dr. Brown presented testimony at trial from Dr. Michael McDonald, an economic expert . Dr. McDonald testified regarding the additional patient receipts Dr. Steve n Frey, 7a family practitioner who joined Dr. Brown's practice in May 1992, brought in to Dr. Brown's practice in 1992 and 1993. According to Dr. McDonald, Dr. F rey's patient receipts averaged around $6,000.00 per month in 1992, and al most $15,000.00 per month in 1993. Dr. McDonald also testified concerning th e additional costs Dr. Brown would have incurred in obtaining additional patientrevenues. Based on Dr. Brown's 1993 financial statements, Dr. McDonald det ermined Dr. Brown's costs would increase by 34.1 cents for every dollar of ad ditional receipts. Hence, Dr. McDonald concluded "65.9 percent of any increment i n patient receipts will go to the bottom line, the net income of [Dr. Brown's pra ctice]."

Dr. George Rhodes, Jr., an economist for the defens e, also testified concerning the additional revenue Dr. Frey brought in to Dr. Brown's practice in-14-

1992 and 1993. Dr. Rhodes testified the hiring of Dr. Frey increased the revenue to Dr. Brown's practice by $15,000.00 to $20,000.00 per month in 1993. Additionally, Dr. Rhodes firmly concluded the addit ion of another physician to Dr. Brown's practice would result in an increase in the practice's revenue.

From the above testimony, it is clear Presbyterian Healthcare Services' interference with the hiring of Dr. Reib caused fin ancial harm to Dr. Brown's practice. Although the testimony of Dr. McDonald a nd Dr. Rhodes does not provide a precise model for determining the extent of Dr. Brown's damages, it does provide a reasonable basis for estimating the plaintiff's loss. From the testimony regarding the amount of additional revenu e Dr. Frey brought into Dr. Brown's practice, the jury could have reasonably de termined the hiring of Dr. Reib would have resulted in a similar increase in r evenue. Such a determination finds support in New Mexico law (see, e.g. , Ranchers Exploration & Dev. Corp. v. Miles , 696 P.2d 475, 477 (N.M. 1985) (historic profits o f established business may be considered in determining lost profits) (cit ing J.R. Watkins Co. v. Eaker , 244 P.2d 540, 544 (N.M. 1952)), and is particularlysound in light of the similar training and professional backgrounds of Dr. Frey and Dr. Reib, and the temporal proximity of the period in which Dr. Frey began his employment with Dr. Brown to the period in which Presbyterian Healthcare Serv ices interfered with the hiring-15-

of Dr. Reib. Finally, from Dr. McDonald's testimony concerning the amount of additional costs Dr. Brown would have incurred fromincreased patient revenues, the jury could have reached a rational conclusion a s to the amount of lost profits Dr. Brown's practice incurred due to Presbyterian H ealthcare Services' tortious interference with contract.

As explained in Restatement (Second) of Torts, once an injured person establishes his business or transaction would have been profitable, it is not fatal to the recovery of substantial dama ges that he is unable to prove with definiteness the amount of the profit s he would have made or the amount of harm that the defendant has c aused. It is only essential that he present such evidence as might re asonably be expected to be available under the circumstances. Restatement (Second) of Torts § 912(d), at 483 (197 9). Given the circumstances of this case, we believe the evidence concerning th e increase in revenues resulting from the recruitment of Dr. Frey was a reasonable m ethod of establishing damages. This is especially so in light of the fac t that the certainty of damages "was 'made hypothetical by the very wrong' of the d efendant." See Restatement (Second) of Torts § 774A comt. c (1979). We find t he jury's award of compensatory damages to be reasonably based upon su fficient evidence in the record, and we therefore reverse the district court 's order vacating this award.-16-

Having reversed the district court's order vacating the jury's award of compensatory damages for tortious interference withcontract, we must next determine whether its order setting aside the jury' s award of punitive damages on this claim should stand. The district court set as ide the punitive damages award solely because it was dependent on the jury's award of compensatory damages on the tortious interference claim. Since we have rei nstated the compensatory damages award, the punitive damages award likewise must be reinstated. We therefore reverse the district court's order vacati ng the jury's award of punitive damages on the tortious interference with contract claim.

Dr. Brown also contends the district court erred insetting aside the jury's award of punitive damages against Dr. Williams on t he antitrust claim. The district court did so pursuant to Fed. R. Civ. P. 5 9(e), which ruling we review for abuse of discretion. Webber v. Mefford, 43 F.3d 1340, 1345 (10th Cir. 1994). Under the abuse of discretion standard, a trial court's decision will not be disturbed unle ss the appellate court has a definite and firm conviction that the lower c ourt made a clear error of judgment or exceeded the bounds of permiss ible choice in the circumstances. When we apply the "abuse of dis cretion" standard, we defer to the trial court's judgment be cause of its firsthand ability to view the witness or evidence and as sess credibility and probative value.815 U.S.C. § 15(a) provides in pertinent part, "any person who shall be

injured ... by reason of anything forbidden in the antitrust laws ... shall recover threefold the damages by him sustained." -17- Moothart v. Bell , 21 F.3d 1499, 1504 (10th Cir. 1994) (quoting McEwen v. City of Norman , 926 F.2d 1539, 1553-54 (10th Cir. 1991)). In thi s circuit, abuse of discretion is defined as "'an arbitrary, capricious , whimsical, or manifestly unreasonable judgment.'" FDIC v. Oldenburg , 34 F.3d 1529, 1555 (10th Cir. 1994) (quoting United States v. Hernandez-Herrera , 952 F.2d 342, 343 (10th Cir. 1991)).

In the present case, the jury found Dr. Williams li able on the antitrust conspiracy claims and awarded punitive damages agai nst her in the amount of $75,000.00. Thereafter, in accordance with 15 U.S. C. § 15(a) (1994), 8 the district court entered an award of treble damages against Dr . Williams on the antitrust claims. However, the district court vacated the ju ry's award of punitive damages against Dr. Williams, noting such an award would be duplicative because the treble damages provision already embodies punitive damages.

Dr. Brown now contends the district court erroneous ly set aside the punitive damages award because "[t]he Defendants pr oposed a verdict form calling for punitive damages for antitrust violatio ns." According to Dr. Brown,-18-

the defendants "invited" the jury to erroneously aw ard punitive damages against Dr. Williams, and consequently, the defendants are now precluded from seeking judicial review of this "invited error." As an ini tial matter, the court notes it is clearly improper to allow a plaintiff to recover pu nitive damages along with trebled damages on an antitrust claim. "Punitive d amages beyond the statutory trebled damages cannot be awarded for an antitrust violation. The enhancement of damages in an antitrust case is the damages treb led." McDonald v. Johnson & Johnson , 722 F.2d 1370, 1381 (8th Cir. 1983) (citing Clark Oil Co. v. Phillips Petroleum Co ., 148 F.2d 580, 582 (8th Cir.) (treble damage prov ision encompasses both punitive and compensatory damages) , cert. denied, 326 U.S. 734 (1945)). See also Spence v. Southeastern Alaska Pilots’ Ass’ n , 789 F. Supp. 1014, 1029 (D. Alaska 1992) ("[p]unitive damages ar e not available on federal anti-trust claims").

Notwithstanding the patent impropriety of allowing a plaintiff to recover punitive damages on an antitrust claim, Dr. Brown a rgues Dr. Williams' failure to object to the jury instructions and verdict sheet t hat permitted the recovery of such damages serves to preclude subsequent judicial review of the jury's award of punitive damages. As Dr. Brown points out, an appe llant may not generally complain on appeal of errors he has himself induced or invited. See, e.g.,-19-

Meredith v. Beech Aircraft Corp., 18 F.3d 890 (10th Cir. 1994) (citing Gundy v. United States , 728 F.2d 484, 488 (10th Cir. 1984)). However, wh ere the jury has returned a special verdict, the trial judge is obli gated to apply appropriate legal principles to the facts found by the jury. Thedorf v. Lipsey , 237 F.2d 190, 193 (7th Cir. 1956). "[I]t is for the court to decide upon the jury’s answers ... what the resulting legal obligation is." Id. Moreover, in determining whether to grant or deny a Rule 59(e) motion to alter or amend the j udgment, the district court is vested with considerable discretion. Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 355 (5th Cir. 1993) (citing Lavespere v. Niagara Machine & Tool Works, Inc. , 910 F.2d 167, 174 (5th Cir. 1990)). The districtcourt may grant a motion to alter or amend the judgment where it is n ecessary to correct manifest errors of law. Charles Alan Wright et al., Federal Practice and Procedure: Civil 2d § 2810.1, at 124-25 (1995).

In the case at bar, the jury instructions and speci al verdict form were exhaustive and labyrinthine. The jury's responsibi lities included determining the liability of six defendants for as many as seven di stinct claims. The special verdict form alone was twelve pages and contained m ore than thirty individual questions. Given the numerous parties, claims and overall complexity of the case, we do not believe the trial judge abused his discre tion in vacating the jury's award-20-

of punitive damages against Dr. Williams. As state d in the district court's Memorandum Opinion and Order, "it would have been i mpractical and confusing to the jury to have drafted the special verdict to include all of the combinations of circumstances under which punitive damages could orcould not have been awarded against various defendants." The district court's decision to vacate the award of punitive damages served to correct a manif est error of law and did not prejudice Dr. Brown. Under these circumstances, we are notleft with "a definite and firm conviction that the lower court made a cle ar error of judgment or exceeded the bounds of permissible choice in the ci rcumstances." Hence, we affirm the district court's order vacating the awar d of punitive damages against Dr. Williams.

IV. Appeal of Presbyterian Healthcare Services, Dr . Williams and Ms. Miller Presbyterian Healthcare Services, Dr. Williams and Ms. Miller contend the district court erred in: (1) failing to find the d efendants immune, as a matter of law, from antitrust and defamation damages under th e Health Care Quality Improvement Act and (2) failing to grant judgment a s a matter of law in the defendants' favor on the merits of Dr. Brown's anti trust and defamation claims. As stated, we review the denial of a motion for jud gment as a matter of law de-21-

novo, applying the same legal standard used by the district court. Thompson , 34 F.3d at 941. Judgment as a matter of law should on ly be granted if the evidence, when viewed in the light most favorable to the party opposing the motion, could not support a verdict in that party's favor. Anderson , 477 U.S. at 257.

First, the defendants argue the trial court erred i n failing to find them immune, as a matter of law, from damages resulting from the revocation of Dr. Brown's obstetrical privileges, under the Health Care Quality Improvement Act. In 1986, Congress adopted the Health Care Quality I mprovement Act in response to "[t]he increasing occurrence of medical malpract ice and the need to improve the quality of medical care." See 42 U.S.C. § 11101(1), (2) (1994). Recognizing "[t]he threat of private money damage liability ... unreasonably discourages physicians from participating in effective professi onal peer review," see 42 U.S.C. § 11101(4), Congress deemed it essential forthe legislation to provide qualified immunity from damages actions for hospita ls, doctors and others who participate in professional peer review proceedings

. Imperial v. Suburban Hosp. Ass’n, Inc. , 37 F.3d 1026, 1028 (4th Cir. 1994). Thus, under the Health Care Quality Improvement Act, a peer review participant is immune from private damage claims stemming from the peer review action provided the review action is taken:-22-

(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 o f the matter, (3) after adequate notice and hearing procedures ar e afforded to the physician involved or after such other procedures a s are fair to the physician under the circumstances, and (4) in the reasonable belief that the action was wa rranted by the facts known after such reasonable effort to obtain facts and after meeting the requirement of paragraph (3). 42 U.S.C. §§ 11111(a)(1), 11112(a) (1994). A peer review action is presumed to have met the preceding standards necessary for immu nity. 42 U.S.C. § 11112. However, if a plaintiff challenging a peer review a ction proves, by a preponderance of the evidence, any one of the four requirements was not satisfied, the peer review body is no longer afford ed immunity from damages under the Health Care Quality Improvement Act. 42 U.S.C. § 11112(a); see, e.g., Islami v. Covenant Medical Center, Inc. , 822 F. Supp. 1361, 1377-78 (N.D. Iowa 1992) (review participants not entitled to immunityas matter of law because plaintiff presented sufficient evidence for a jury to conclude review participants did not provide plaintiff with fair and adequate pr ocess). Courts apply an objective standard in determining whether a peer re view action was reasonable under 42 U.S.C. §11112(a). See, e.g., Mathews v. Lancaster Gen'l Hosp. , 87 F.3d 624, 635 (3d Cir. 1996); Austin v. McNamara , 979 F.2d 728, 734 (9th Cir. 1992).-23-

In the present case, the formal peer review hearing was held to determine whether Dr. Brown had agreed to seek consultation f or high-risk obstetrical patients and if so, whether Dr. Brown had breached this agreement. During the hearing, Ms. Miller outlined the hospital's positio n, and the Panel reviewed the charts of two patients Dr. Brown treated. Both Dr. Williams and Dr. Brown testified at the hearing. Following approximately two hours of deliberations, the review panel concluded Dr. Brown had breached her a greement to obtain appropriate consultation and recommended removal of Dr. Brown's privileges to practice obstetrics at Lincoln County Medical Cente r.

At trial, Dr. Brown presented sufficient evidence f or a reasonable jury to find, by a preponderance of the evidence, the peer review action was not taken after a "reasonable effort to obtain the facts of t he matter." Dr. Norman Lindley, a physician specializing in obstetrics and gynecolo gy, testified on behalf of Dr. Brown. Dr. Lindley reviewed the charts for every o bstetrics patient Dr. Brown treated for the six-month period preceding her revo cation and concluded Dr. Brown recognized high-risk obstetrics patients and obtained appropriate consultation when necessary. Dr. Lindley also test ified the peer review panel's review of only two charts prior to revoking Dr. Bro wn's obstetrical privileges was9The defendants appear to argue the testimony of D r. Lindley is irrelevant

because the defendants presented evidence from a nu mber of doctors who testified the review panel’s actions satisfied the requiremen ts of 42 U.S.C. § 11112(a). According to the defendants, "a difference of opini on among experts" does not raise an issue as to the objective reasonableness o f the inquiry. We are not persuaded by the defendant's view. Under its theory, a peer review participant would be absolutely immune from liability for its a ctions so long as it produced a single expert to testify the requirements of 42 U.S .C. § 11112(a) were satisfied. This would be in direct contravention to Congress' intention to provide "qualified immunity." Moreover, t o remove a plaintiff's claims from the jury simply because "a difference of opinion among experts" exists woul d abrogate the jury's responsibility to weigh the evidence and determine the credibility of witnesses. See, e.g., Moe v. Avions Marcel Dassault-Breguet Av iation , 727 F.2d 917, 930 (10th Cir.) ("entire jury system is anchored to the jurors' determination of credibility of witnesses and the weight to be given their testimony"), cert. denied, 469 U.S. 853 (1984). Thus, in determining whether a peer review participant is immune under the Health Care Quality Improvement Ac t, the proper inquiry for the court is whether Dr. Brown has provided sufficient evidence to permit a jury to find she -24- unreasonably narrow and did not provide a reasonabl e basis for concluding Dr. Brown posed a threat to patient safety.

Thus, from Dr. Lindley's testimony, a reasonable ju ry could have found the panel's review to be unreasonably restrictive and n ot taken after a "reasonable effort to obtain the facts." Such a finding remove s the defendants from the qualified immunity provided by the Health Care Qual ity Improvement Act. Hence, we conclude the district court did not err i n failing to find Presbyterian Healthcare Services, Ms. Miller and Dr. Williams im mune, as a matter of law, from damages stemming from the revocation of Dr. Br own's obstetrical privileges. 9has overcome, by a preponderance of the evidence, any of the four statutory elements

required for immunity under 42 U.S.C. § 11112(a). See, e.g., Austin , 979 F.2d at 734. In this case, we believe Dr. Brown presented suffic ient evidence to overcome the presumption and allow the issue to be decided by th e jury.

-25- Next, Ms. Miller argues the district court erred in failing to find her immune, as a matter of law, from damages on Dr. Bro wn's defamation claim. The Health Care Quality Improvement Act confers immunity on any person who makes a report to the National Practitioner Data Ba nk "without knowledge of the falsity of the information contained in the report. " 42 U.S.C. § 11137(c) (1994). Thus, immunity for reporting exists as a matter of law unless there is sufficient evidence for a jury to conclude the report was fals e and the reporting party knew it was false.

Although the data bank report in this case listed t he reason for Lincoln County Medical Center's disciplinary action as "neg ligence/incompetence/malpractice," the record reveals neither the review pa nel nor the hospital's Board of Trustees ever found Dr. Brown negligent, incompetent or guilty of malpractice. Rather, the review panel merely determined Dr. Brow n breached her agreement to obtain appropriate consultation. Although the pane l members were "concerned that [Dr. Brown] does not recognize complicated obs tetrics or is reluctant to refer such cases," the panel "felt that Dr. Brown was competent to do uncomplicated-26-

obstetrics." Ms. Miller, who was involved in the p reparation and review of the report, received a copy of the committee's written findings and was fully aware of the committee's conclusions and the Board of Truste e's action against Dr. Brown. Thus, the record contains sufficient evidence from which a reasonable jury could have concluded the data bank report was false and M s. Miller knew of its falsity. We therefore affirm the district court’s determinat ion Ms. Miller is not immune from defamation damages, as a matter of law, under the Health Care Quality Improvement Act.

Presbyterian Healthcare Services, Ms. Miller and Dr . Williams also claim the district court erred in failing to enter judgme nt as a matter of law in their favor on the merits of Dr. Brown's antitrust claims . The jury in this case determined Ms. Miller and Dr. Williams joined in a conspiracy to exclude Dr. Brown from competing in the Ruidoso, New Mexico, market. However, the jury did not conclude Presbyterian Healthcare Services p articipated in the conspiracy. Since the decision to revoke Dr. Brown's medical pr ivileges was made by an independent, nonconspirator (Lincoln County Medical Center's Board of Trustees), the defendants contend Ms. Miller and Dr . Williams could not have proximately caused the revocation and, therefore, c annot be held liable for Dr. Brown's injuries.-27-

A private plaintiff seeking to invoke the antitrustlaws must show the defendants caused her alleged injury. Todorov v. DCH HealthCare Authority , 921 F.2d 1438, 1459 (11th Cir. 1991) (citing Cargill, Inc. v. Monfort of Colo., Inc. , 479 U.S. 104 (1986)). The key question in determin ing the defendants' ability to "cause a restraint [of trade] to be imposed" is whe ther the defendants had control over the decisionmaking process, or the ability to coerce or unduly influence the decision. See Oksanen v. Page Memorial Hosp., 945 F.2d 696, 705-06 (4th Cir. 1991) (medical staff had no control where Board of Trustees requested and encouraged medical staff to take corrective action) , cert. denied, 502 U.S. 1074 (1992); Weiss v. York Hosp., 745 F.2d 786, 819 n.57 (3d Cir. 1984) (given dominant role of medical staff and limited nature o f review, evidence supported jury's finding medical staff violated antitrust law s), cert. denied, 470 U.S. 1060 (1985); Islami v. Covenant Medical Center, Inc. , 822 F. Supp. 1361, 1383 (N.D. Iowa 1992) (medical staff had ability to coerce or unduly influence decision). Where a reasonable jury could conclude from the evi dence that the defendants controlled, coerced, or unduly influenced the decis ion that resulted in a restraint of trade, a genuine issue of material fact exists o n the issue of causation. Oksanen , 945 F.2d at 705-06; Weiss , 745 F.2d at 819 n.57; Islami , 822 F. Supp. at 1383.-28-

Here, neither Ms. Miller nor Dr. Williams voted on the decision to revoke Dr. Brown’s obstetrical privileges. However, the r ecord reveals both Ms. Miller and Dr. Williams played an influential role in brin ging about the revocation. The jury heard evidence at trial which tended to show D r. Williams, a competitor of Dr. Brown, and Teresa McCallum, a nurse who had mad e anti-semitic remarks about Dr. Brown in Dr. Williams' presence, were res ponsible for identifying all five of Dr. Brown's charts that were reviewed durin g the two peer review proceedings. Dr. Williams authored the criticisms that Ms. Miller sent to the outside reviewing physicians, and she testified aga inst Dr. Brown at the revocation peer review proceeding. Ms. Miller aske d Dr. Williams to prepare the summary of criticisms that were attached to the cas es sent to the outside reviewing physicians even though Dr. Brown had comp lained to Ms. Miller about a personality conflict between Dr. Williams and Dr. Brown. Furthermore, Ms. Miller instituted the formal peer review proceeding s against Dr. Brown by sending a complaint to the Medical Staff Executive Committee, she presented the "hospital's position" at the formal review proceedi ng, and she served on the Board of Trustees.

Thus, the record is replete with evidence tending t o show Ms. Miller and Dr. Williams were the catalysts behind, or played acrucial role in, every step of-29-

the proceedings against Dr. Brown. Viewing the ent ire evidence in the light most favorable to Dr. Brown, we believe a reasonable jury could have concluded Dr. Williams and Dr. Brown controlled, coerced or undul y influenced the decisionmaking process. We therefore affirm the di strict court's denial of the defendants' motion for judgment as a matter of law on the merits of Dr. Brown's antitrust claims.

Finally, Ms. Miller argues the district court erred in failing to grant judgment as a matter of law in her favor on the mer its of Dr. Brown's defamation claim. According to Ms. Miller, Dr. Brown failed t o establish the data bank report caused actual injury to her reputation. Und er New Mexico law, a plaintiff must prove actual injury to state a claim for defam ation; damages cannot be presumed in a defamation action. Newberry v. Allied Stores, Inc ., 773 P.2d 1231, 1236 (N.M. 1989) (citing Poorbaugh v. Mullen , 653 P.2d 511, 520 (N.M. Ct. App.), cert. denied, 653 P.2d 878 (N.M. 1982)). However, actual injury is not limited to out-of-pocket loss. Id. ; see also Cowan v. Powell , 856 P.2d 251, 253 (N.M. Ct. App. 1993). As stated by the New Mexico Supreme Court in Newberry , "the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in th e community, personal-30-

humiliation, and mental anguish and suffering." 77 3 P.2d at 1236 (quoting Marchiondo v. Brown , 649 P.2d 462, 470 (N.M. 1982))

.

In the case at bar, the record reveals Dr. Brown so ught to obtain obstetrical privileges at Gerald Champion Memorial Hospital aft er the revocation by Lincoln County Medical Center. Pursuant to federal regulat ions, every hospital that receives an application for clinical privileges mus t check with the National Practitioner Data Bank for reports on the applicant . 45 C.F.R. § 60.10(a)(1) (1995). Thus, as part of the application process at Gerald Champion Memorial Hospital, Dr. Brown had to undergo a hearing and explain the reason Lincoln County Medical Center revoked her obstetrical privi leges. As the district court found, we believe sufficient evidence exists for a jury to have concluded Dr. Brown suffered impairment of reputation and standin g in the community or personal humiliation when she had to explain why Li ncoln County Medical Center revoked her privileges based on "negligence/incompe tence/malpractice." Although Gerald Champion Memorial Hospital ultimate ly granted obstetrical privileges to Dr. Brown, "an opportunity for rebutt al seldom suffices to undo harm [sic] of defamatory falsehood." See Gertz v. Robert Welch, Inc. , 418 U.S. 323, 344 n.9 (1974). We therefore affirm the distr ict court's decision to deny the-31-

defendants' motion for judgment as a matter of law on the merits of Dr. Brown's defamation claim.

V. Conclusion For the reasons stated above, we REVERSE the district court's order and judgment vacating the jury's award of compensatory and punitive damages on Dr. Brown's tortious interference with contract claim. We AFFIRM the judgment of the district court in all other respects.