The Honorable Harold D. Vietor, United States District Judge for the Southern 1

District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-1432

___________

Eileen M. Wayne, *

*

Appellant, *

*

v. *

* Appeal from the United States

Genesis Medical Center, an Iowa * District Court for the Southern

Not for Profit Corporation and a * District of Iowa.

Successor by Merger with St. Luke&s *

Hospital; St. Luke&s Hospital; Douglas * (PUBLISHED)

Wells; Kristen Wells; James K. *

McEnerney; William B. Hofmann; *

Daniel P. Congreve; A.R. Swearingen, *

*

Appellees. *

___________

 Submitted: January 5, 1998

 Filed: April 6, 1998

___________

Before WOLLMAN, LOKEN, and HANSEN, Circuit Judges.

___________

PER CURIAM.

Eileen Wayne, M.D., appeals the district court&s grant of summary judgment to 1

the defendants in her action asserting violations of the Health Care Quality
On December 15, 1994, St. Luke&s and Mercy hospitals were merged to form 2

Genesis.

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Improvement Act of 1986 (HCQIA), 42 U.S.C. §§ 11101-52, and state law breach of

contract, invasion of privacy, and defamation claims. Wayne, an ophthalmologist,

brought this action against Genesis Medical Center and its pre-merger predecessor St.

Luke&s Hospital (collectively, the hospital), and six physicians, concerning events

2

relating to the temporary suspension of her surgical privileges. We affirm.

I.

Viewed in the light most favorable to Wayne, the stipulated facts and documents

submitted in support of the parties& cross-motions for summary judgment reveal the

following. In October 1992, Wayne was a patient at the hospital, where she underwent

surgery. Subsequently, Wayne lodged a complaint with the hospital regarding the

performance of the surgery. Dissatisfied with the hospital&s responses, Wayne removed

pages of her medical records she found objectionable. Because Wayne was herself a

physician with surgical privileges at the hospital, she had access to hospital medical

records, including her own.

When Wayne&s action was discovered, the incident was referred to the hospital&s

Surgery Service Committee for investigation; Wayne declined its invitation to attend

its meeting. Because the Surgical Service Committee concluded Wayne&s removal of

the medical records was a medical staff issue, the matter was referred to a meeting of

the hospital&s Medical Executive Committee (MEC), which included the physician

defendants. Wayne was invited to participate, but again declined. The MEC decided

to suspend Wayne&s surgical privileges. After Wayne returned the missing records,

MEC voted to lift Wayne&s suspension.
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In April 1993, Wayne applied for staff privileges at Mercy Hospital. In response

to a request for clinical information regarding Wayne, one of the defendants wrote a

letter to Mercy&s Director of Medical Affairs, in which he stated, inter alia, that Wayne

had had her privileges temporarily suspended “because of an incident of alteration of

her own personal medical record,” but that “[t]his difficulty [had] been resolved.” See

Appellant&s Br. Add. at unnumbered page between pages 25 and 26. In a subsequent

letter, the physician defendant clarified that his reference to “alteration” meant only that

Wayne had removed certain portions of her medical record from the hospital for a

period of time.

Wayne claimed the defendants& actions in summarily suspending her violated the

HCQIA, because the suspension was not taken “in the reasonable belief that they were

furthering the quality of health care” as required by the Act, and because the HCQIA

specifies that hearing panels may not include members “in direct competition” with the

physician being reviewed, see 42 U.S.C. § 11112(b)(3)(A)(ii), (iii), and two members

of the MEC were ophthalmologists. Wayne also argued that her summary suspension

breached a contract created by the hospital&s bylaws. Asserting that private facts about

her surgery were disseminated and that the defendants discussed her private life at the

MEC meeting, Wayne argued her privacy was invaded. Finally, Wayne argued that the

defendants defamed her by reporting her suspension to other hospitals and using the

term “alteration” in the letter to Mercy. 

Wayne and the defendants cross-moved for summary judgment. The district

court granted the defendants& motion and denied Wayne&s motion. The court reasoned

that the HCQIA did not create a private right of action for physicians, and that the

statute gave the hospital—the only proper defendant—immunity from Wayne&s contract

claim. As to the invasion of privacy claim, the district court concluded that Wayne had

failed to demonstrate widespread publicity. The court concluded that the defamation

claim failed because the letter was substantially true.
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II.

We review de novo the grant of summary judgment, using the same standards

as the district court and affirming where, viewing the evidence in the light most

favorable to the plaintiff, there is no genuine issue of material fact and judgment is

appropriate as a matter of law. See Davenport v. Riverview Gardens Sch. Dist., 30

F.3d 940, 944 (8th Cir. 1994). We also review de novo the district court&s

interpretation of state law. See Canal Ins. Co. v. Ashmore, 126 F.3d 1083, 1085 (8th

Cir. 1997). 

III.

A. Private Cause of Action Under the HCQIA

Although this court has not had the opportunity to examine whether the HCQIA

provides a private cause of action to aggrieved physicians, we can find no bases in the

express language of the HCQIA for concluding that it affords such a private cause of

action. See 42 U.S.C. §§ 11101-52. In determining whether a private remedy is

implicit in the HCQIA, we must consider (1) whether Wayne is a member of the class

for whose especial benefit the HCQIA was passed, (2) whether there was a legislative

intent to create or deny a private remedy, (3) whether an implied remedy is consistent

with the underlying purposes of the legislative scheme, and (4) whether the cause of

action is one basically relegated to the states, so that it would be inappropriate to infer

a federal cause of action. See Labickas v. Arkansas State Univ., 78 F.3d 333, 334 (8th

Cir.) (per curiam) (citing Cort v. Ash, 422 U.S. 66, 78 (1975)), cert. denied, 117 S.

Ct. 395 (1996). The critical inquiry is congressional intent; thus the second and third

factors carry the most weight in this analysis. See id.
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We conclude that none of these relevant factors weighs in favor of an implied

cause of action. The HCQIA&s grant of immunity to review boards strongly suggests

that the Act was not enacted to benefit the physician undergoing peer review. The

remaining factors weigh against finding an implied cause of action as well, as it was

clearly Congress&s intent in enacting the HCQIA, to “improve the quality of medical

care by encouraging physicians to identify and discipline other physicians who are

incompetent or who engage in unprofessional behavior.” H.R. Rep. No. 99-903, at 2

(1986), reprinted in 1986 U.S.C.C.A.N. 6287, 6384. Nothing in HCQIA&s explicit

language or legislative history otherwise signals an intent to create a cause of action for

aggrieved physicians.

We thus join the Tenth and Eleventh Circuits in concluding that the HCQIA does

not explicitly or implicitly afford aggrieved physicians a cause of action when a hospital

fails to follow the HCQIA&s prescribed peer review procedures. See Hancock v. Blue

Cross-Blue Shield, Inc., 21 F.3d 373, 374-75 (10th Cir. 1994) (HCQIA does not

explicitly or implicitly create a private cause of action for physicians subjected to peer

review; Congress did not intend to create cause of action for benefit of physicians); see

also Bok v. Mutual Assurance, Inc., 119 F.3d 927, 928-29 (11th Cir. 1997) (per

curiam) (agreeing with Hancock that HCQIA does not create cause of action for

physicians).

B. HCQIA Immunity

We agree with the district court that the HCQIA immunizes the hospital from

Wayne&s breach-of-contract claim. Under the HCQIA, professional review bodies are

protected from damages suits under federal and state law for review actions taken:

(1) in the reasonable belief that the action was in the furtherance

of quality health care, 
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(2) after a reasonable effort to obtain the facts of the matter,
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(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. §§ 11111(a)(1) & 11112(a). 

There is a presumption that these requirements have been met unless the

presumption is rebutted by a preponderance of the evidence. See 42 U.S.C.

§ 11112(a). While we have not had an opportunity to apply the HCQIA&s immunity

provision, other circuits interpreting the HCQIA have applied an objective standard to

section 11112(a)&s reasonableness requirement. See, e.g., Mathews v. Lancaster Gen.

Hosp., 87 F.3d 624, 635 (3d Cir. 1996); Bryan v. James E. Holmes Reg&l Med. Ctr.,

33 F.3d 1318, 1335 (11th Cir. 1994), cert. denied, 514 U.S. 1019 (1995); Austin v.

McNamara, 979 F.2d 728, 734 (9th Cir. 1992); see also H.R. Rep. No. 99-903, at 10

(1986), reprinted in 1986 U.S.C.C.A.N. 6287, 6392-93. We agree that section

11112(a) employs an objective standard.

Applying this standard to the facts of this case, we agree with the district court

that Wayne failed to rebut the presumption of immunity. In response to the defendants&

summary judgment motion, Wayne made conclusory allegations that the defendants

were “clearly unconcerned about quality health care regarding other practitioners” and

that her conduct, rather than the defendants&, was in furtherance of patient interests.

We find these allegations insufficient to rebut the presumption established in section

11112(a). See Austin, 979 F.2d at 734 (question is whether reasonable jury, viewing

facts in plaintiff&s favor, could conclude he had shown by preponderance of evidence

that the defendants& actions fall outside of § 11112(a)).
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We also conclude that Wayne&s claim that two members of the MEC were

ophthalmologists in direct economic competition with her is insufficient to rebut the

presumption that the peer review process was fair under the circumstances. See

Mathews, 87 F.3d at 634-38 (physician&s allegations that some review members were

competitors was insufficient to rebut presumption that actions met standard for

immunity from suit). Section 11112(b)(3)(A)(ii), (iii), which prohibits a hearing officer

or panel from including physicians in direct competition with the physician involved,

is inapplicable, as the MEC members were not acting as hearing officers. See

Mathews, 87 F.3d at 636 (affirming district court&s conclusion that HCQIA prohibits

direct competitors from being hearing officers, and not from participating in other

phases of peer review process). 

C. Remaining State Law Claims

As Wayne did not show the defendant physicians were involved in disseminating

information about her surgery or that the defendants did more than discuss her removal

of records in committee meetings (referring to her by number), we further conclude the

district court properly granted judgment to the defendants on Wayne&s invasion of

privacy claim. See Restatement (Second) of Torts § 652D (1977) (tort requires

publicity of matter highly offensive to reasonable person that is not legitimate concern

to public); Stessman v. American Black Hawk Broad. Co., 416 N.W.2d 685, 686 (Iowa

1987) (observing that Iowa has adopted and applied principles of privacy invasion as

found in Restatement). The defamation claim is likewise without merit, as Wayne did

alter her medical record and was suspended. By removing the pages from her record,

she rendered the record less complete than it was originally, and thereby caused an

alteration to it. See Behr v. Meredith Corp., 414 N.W.2d 339, 342 (Iowa 1987) (Iowa

courts recognize substantial truth as defense to defamation; test is whether “plaintiff

would have been exposed to any more opprobrium had the publication been free of

error”).
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IV.

We further conclude the district court did not abuse its discretion in denying

Wayne&s delinquent motion to amend her complaint, see Williams v. Little Rock Mun.

Water Works, 21 F.3d 218, 224 (8th Cir. 1994) (standard of review), or her Federal

Rule of Civil Procedure 59(e) motion. See Twin City Constr. Co. v. Turtle Mountain

Band of Chippewa Indians, 911 F.2d 137, 139 (8th Cir. 1990) (Rule 59(e) standard of

review). 

V.

Accordingly, we affirm the judgment of the district court, and we deny all

pending motions as moot.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.