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 distr ict court & s grant of summary judgment to

1 the defendants in her action asserting violations of the Health Care QualityO n December 15, 1994, St. Luke & s and Mercy hospitals were merged to form 2 Genesis. -2- Improvement Act o f 1986 (HCQIA), 42 U.S.C. §§ 11101-52, and state law breach of contra ct, invasion of privacy, and defamation claims. Wayne, an ophthalmologist , brought this action against Gen esis Medical Center and its pre-merger predecessor St. Luke & s Hospital (collectively, the hospital), and six physicians, concerning event s 2 relating to the temporary suspension of her surgical privileges. We affirm.

I. Viewed in the light most favorable to Wayne, the stipulate d facts and documents
su bmittedin support of the parties & cross-motions for summary judgment reveal th e following. In October 1992, Wayne was a patient at the hospita l, where she underwent surgery. Subsequently, Wayne lodged a complaint with the hospital regarding th e performance of the surgery. Dissatisfied with the hospital & s responses, Wayne removed pages of h er medical records she found objectionable. Because Wayne was herself a physician w ith surgical privileges at the hospital, she had access to hospital medica l 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 r

ecords was a medical staff issue, the matter was referred to a meeting of the hosp ital & s Medical Executive Committee (MEC), which included the physicia n defendants. Wayne was invited to participate, but again declined. The MEC decided to sus pend Wayne & s surgical privileges. After Wayne returned the missing records , MEC voted to lift Wayne & s suspension.-3-

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 whi ch 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 B r. Add. at unnumbered page between pages 25 and 26. In a subsequent letter, the physician defendant clarified that his reference to “altera tion” 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 suspend ing her violated the HCQIA, because the suspension was not taken “in th e 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 memb ers “in direct competition” with the physician being reviewe d, see 42 U.S.C. § 11112(b)(3)(A)(ii), (iii), and two members of the MEC were ophthalmol ogists. Wayne also argued that her summary suspension breached a contract created by the hospital & s bylaws. Asser ting 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 defend ants defamed her by reporting her suspension to other hospitals and using th e term “alteration” in the letter to Mercy. Wayne an d the defendants cross-moved for summary judgment. The distric t court granted the defendants & motion and denied Wayne & s motion. The court reasoned tha t the HCQIA did not create a private right of action for physicians, and that th e statute gave the hospital—the only proper defendant—immunity from Wayne & s contract claim. As to the invasion of privacy claim, the district c ourt concluded that Wayne had faile d to demonstrate widespread publicity. The court concluded that the defamation claim failed because the letter was substantially true.-4- II.

We review de novo the grant of summary judgment, using the same standard s as the dist rict court and affirming where, viewing the evidence in the light mos t favorable to the plaintiff, there is no genuine issue of material fact and judgment i s appropriate as a matter of law. See Davenport v. Riverview Gardens Sch. Dist. , 3 0 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
e x press 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 i s implicit in the HCQIA, we m ust consider (1) whether Wayne is a member of the class for whose especial benefit the HCQ IA was passed, (2) whether there was a legislative intent to create or deny a private remedy, (3) whether an implied remedy is consistent wit h the underlying purposes of the legislative scheme, and (4) whether the cause o f 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 StateUniv. , 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.-5-

We conclude that none of these relevant factors weighs in favor of an implie d
cau se 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. Th e rema ining factors weigh against finding an implied cause of action as well, as it wa s cl early Congress & s intent in enacting the HCQIA, to “improve the quality of medica l
care by encouraging physicians to identify and discipline other physicians who ar e incompetent

or who engage in unprofessional behavior.” H.R. Rep. No. 99-903, at 2 (1986), re printed in1986 U.S.C.C.A.N. 6287, 6384. Nothing in HCQIA & s explici t 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 pre scribed peer review procedures. See Hancock v. Blue Cross-Blue Shield, Inc. , 21 F.3d 373, 374-75 (10th Cir. 1994) (HCQIA does no t 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 al so Bok v. Mutual Assurance, Inc. , 119 F.3d 927, 928-29 (11th Cir. 1997) (pe r curiam) (agreeing with Hancock that HCQIA does not create cause of action fo r physicians). B. HCQIA Immunity

We agree with the district court that the HCQIA immunizes the hospital fro m 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 t he furtherance of quality health care,-6-

(2) after a reasonable effort to obtain the facts of the matter,-7-

(3) after adequate notice and hearing proc edures are afforded to the physician involve d 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).

Th ere is a presumption that these requirements have been met unless th e presump tionis rebutted by a preponderance of the evidence. See 42 U.S.C

. § 1 1112(a). While we have not had an opportunity to apply the HCQIA & s immunit y provision, other circuits inter preting 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), re printed in1986 U.S.C.C.A.N. 6287, 6392-93. We agree that sectio n 11112(a) employs an objective standard. Applying th

is standard to the facts of this case, we agree with the district court that Wayne failed to rebut the presumption of immunity. In resp onse to the defendants & summary judgment motion, Wayne made conclusory allegations that the defendant s were “clearly unconcerned about quality h ealth 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 sectio n 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)).-8-

We a lso conclude that Wayne & s claim that two members of the MEC wer e op hthalmologists in direct economic competition with her is insufficient to rebut th e presumpti onthat the peer review process was fair under the circumstances. Se e Mathews , 87 F.3d at

634-38 (physician & s allegations that some review members were competit ors was insufficient to rebut presumption that actions met standard fo r 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 inappl icable, as the MEC members were not acting as hearing officers. Se e Mathews , 87 F.3d at 636 (affirming district court & s conclusion that HCQIA prohibits direct co mpetitors from being hearing officers, and not from participating in othe r phases of peer review process). C. Remaining State Law Claims As Wayne did not show the defendant physicians were involved in di sseminating 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 o f privacy c laim. See Restatement (Second) of Torts § 652D (1977) (tort require s publicity of matter highly o ffensive to reasonable person that is not legitimate concern to public); Stessman v. American Black Hawk Broad. Co. , 416 N.W.2d 685, 6 86 (Iowa 1987) (o bserving that Iowa has adopted and applied principles of privacy invasion as found in Restatement). The def amation claim is likewise without merit, as Wayne did alter her medical reco rd and was suspended. By removing the pages from her record, sh e rendered the record less complete than it was originally, and thereby caused a n alteration to it. See Behr v. Meredith Cor p. , 414 N.W.2d 339, 342 (Iowa 1987) (Iowa court s recognize substantial truth as defense to defamation; test is whether “plaintif f would have b een exposed to any more opprobrium had the publication been free o f error”).-9- IV.

We further conclude the district court did not abuse its discretion in denyin g Wayne & s delinquent motion to amend he r complaint, see Williams v. Little Rock Mun. Wat er Works , 21 F.3d 218, 224 (8th Cir. 1994) (standard of review), or her Federa l Rule of Civil Pr

ocedure 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.

Accordi ngly, we affirm the judgment of the district court, and we deny al l pending motions as moot. A true copy.

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