United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                  ________________

                                  Nos. 98-2742/2743
                                  ________________

Stephen P. Sugarbaker, M.D.,                *
                                            *
      Appellant/Cross-Appellee,             *
                                            *       Appeals from the United States
      v.                                    *       District Court for the
                                            *       Western District of Missouri.
SSM Health Care, d/b/a St. Marys            *
Health Center,                              *
                                            *
      Cross-Appellant/Appellee.             *

                                  ________________

                                  Submitted: April 19, 1999
                                      Filed: August 19, 1999

                                  ________________

Before BEAM and HANSEN, Circuit Judges, and KOPF,1 District Judge.
                         ________________

HANSEN, Circuit Judge.

       St. Marys Health Center (St. Marys) restricted and then terminated the staff
privileges of Dr. Stephen P. Sugarbaker. In response, Dr. Sugarbaker filed suit alleging
that St. Marys' actions violated federal antitrust laws, as well as various Missouri state



      1
       The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska, sitting by designation.
laws. The district court2 granted summary judgment in favor of St. Marys on the basis
of immunity under the Health Care Quality Improvement Act of 1986 (HCQIA). See
42 U.S.C. §§ 11111(a)(1), 11112(a) (1994). Dr. Sugarbaker appeals, and we affirm.
Because we affirm the district court's judgment regarding immunity under the HCQIA,
we do not reach St. Marys' cross-appeal challenging the district court's denial of St.
Marys' motions to dismiss Dr. Sugarbaker's suit.

                                   I. Background

       Dr. Stephen Sugarbaker is a general surgeon who practiced in Jefferson City,
Missouri. SSM Health Care (SSM) owns and operates St. Marys Health Center in
Jefferson City. In 1994, Dr. Sugarbaker obtained provisional medical staff privileges
at St. Marys. St. Marys suspended Dr. Sugarbaker's privileges in 1995, and it
eventually terminated his privileges in 1997. Dr. Sugarbaker contends that he was the
victim of a conspiracy to control the market for medical services in the Jefferson City
area. Specifically, Dr. Sugarbaker contends that because he refused to join the
Jefferson City Medical Group (JCMG), members of that group conspired with persons
at St. Marys to terminate Dr. Sugarbaker's medical staff privileges.

      The dispute between Dr. Sugarbaker and St. Marys began in early 1995. At that
time, Mike Wilfawn, St. Marys' Department Manager for Surgical Services, and Gay
Cunningham, the Vice President of Patient Services, notified Dr. John Koonce, the
Surgery Department Chairman, of staff concerns regarding Dr. Sugarbaker. Dr. Koonce
forwarded the concerns to St. Marys' Medical Executive Committee (Executive
Committee) and requested a full review of Dr. Sugarbaker's cases. The Executive
Committee is responsible for providing recommendations to the SSM Board of Directors
regarding medical staff privileges. On May 1, 1995, St. Marys informed Dr. Sugarbaker


      2
         The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri.
                                           2
of its concerns. Dr. Sugarbaker agreed to a full retrospective review and concurrent
monitoring of his cases.

       On June 19, 1995, after four surgeons had reviewed some 24 of Dr. Sugarbaker's
cases, St. Marys' Surgery Review Committee met to discuss Dr. Sugarbaker's situation.
The reviewing surgeons found evidence of the following: (1) delay in initiating an
operation; (2) excessive surgery times in some cases; (3) excessive blood loss; (4)
questionable use of antibiotics; and (5) excessive tissue removal in breast biopsies. In
view of these health care quality concerns, the Surgery Review Committee
recommended a precautionary summary suspension of Dr. Sugarbaker's clinical
privileges. After Dr. Sugarbaker refused to request a voluntary leave of absence, the
Executive Committee imposed the precautionary suspension, and on August 3, 1995,
the Executive Committee voted to continue the precautionary suspension. On August
7, St. Marys provided Dr. Sugarbaker with a detailed listing of the Surgery Review
Committee's case review findings. St. Marys also informed Dr. Sugarbaker of his right
to request a hearing.

       Dr. Sugarbaker requested a hearing, and the Executive Committee appointed an
Ad Hoc Committee of independent physicians, including two general surgeons, to
review the Executive Committee's concerns. The Ad Hoc Committee held a hearing on
November 6, 1995, and permitted Dr. Sugarbaker to present evidence and expert
testimony, and to cross-examine the Executive Committee's representative. Thereafter,
the Ad Hoc Committee unanimously voted to remove the precautionary suspension due
to a lack of information. The Ad Hoc Committee indicated that it had only received
information concerning the procedures followed, not the factual basis for the
conclusions reached by the Surgery Department.

      Notwithstanding the Ad Hoc Committee's recommendation to remove the
suspension due to a lack of information, the Executive Committee determined that four
areas of concern remained, and it decided to send these issues back to an Ad Hoc

                                           3
Committee for further consideration. Dr. Sugarbaker, however, requested that the
additional hearing be directly before the Executive Committee, rather than before an Ad
Hoc Committee.3 On January 24, 1996, the Executive Committee held a six-hour fact-
finding hearing. Dr. Sugarbaker was again permitted to present evidence on his own
behalf, to respond to questions, and to cross-examine adverse witnesses. After this
hearing, the Executive Committee voted to permanently terminate Dr. Sugarbaker's
privileges. In a letter dated February 1, 1996, St. Marys notified Dr. Sugarbaker of the
Executive Committee's decision. The letter stated that the Executive Committee based
its decision on Dr. Sugarbaker's "lack of clinical judgment, technical ability, and ethical
perspective in performance of clinical privileges." (J.A. at 760.) The letter also
informed Dr. Sugarbaker of his right to an appeal and enclosed copies of the relevant
sections of the Medical Staff Bylaws.

       Dr. Sugarbaker appealed the Executive Committee's decision. The SSM Board
appointed an Appellate Review Committee comprised of two SSM Board members and
one SSM administrator. According to the Medical Staff Bylaws, the Appellate Review
Committee reviews "the hearing record and any statements submitted . . . to determine
whether the adverse Recommendation or decision was justified and was not arbitrary
or capricious." (Id. at 240.) Contrary to the Executive Committee's views, the
Appellate Review Committee recommended that Dr. Sugarbaker be provisionally
reinstated for one year, that Dr. Sugarbaker be prohibited from performing
emergency/trauma surgery, that he be supervised during certain types of surgery, and
that all of his cases be subject to review and monitoring. (See 

The


      3
        At the time he elected to proceed directly before the Executive Committee it
appears that Dr. Sugarbaker was unaware of the Ad Hoc Committee's recommendation.
We note, however, that the Medical Staff Bylaws do not require notification of an Ad
Hoc Committee's favorable recommendation. (See J.A. at 226.) Moreover, Dr.
Sugarbaker advanced several reasons why a hearing directly before the Executive
Committee was preferable (see 

and he had previously objected to the
participation of certain members of the Ad Hoc Committee (see 

                                            4
Appellate Review Committee also found that "the Executive Committee did not act in
an arbitrary or capricious manner," and that there was no "conspiracy" to oust Dr.
Sugarbaker. (Id. at 984.) The Appellate Review Committee expressed a concern that
the Executive Committee had not sufficiently articulated what it believed to be the
standard of care in each case, but it concluded that the Executive Committee had
"identified some very clear deficiencies on Dr. Sugarbaker's part," and that "sufficient
evidence exists to raise concerns about Dr. Sugarbaker's practice." (Id. at 984-85.)

        The Appellate Review Committee enumerated four specific deficiencies with
regard to Dr. Sugarbaker's practice. First, the committee expressed concern for the
amount of time Dr. Sugarbaker required to perform laparoscopic cholecystectomies.4
The committee noted that despite Dr. Sugarbaker's inexperience in performing such
operations independently, he failed to request assistance in the performance of these
procedures. The Appellate Review Committee's second concern related to a neck
trauma case in which the patient experienced an airway obstruction. The committee
concluded that irrespective of the various possible reasons why the patient experienced
the obstruction, "Dr. Sugarbaker's delay in securing the patient's airway, and, by the
accounts of all witnesses present, the further delay in responding to a life and death
crisis, exhibits an inability to respond appropriately in crisis situations." (J.A. at 985.)
Third, the Appellate Review Committee noted that it was "unconvinced by Dr.
Sugarbaker's varying explanations as to why [a patient] experienced [a] mid-procedure
crisis and why Dr. Sugarbaker failed to document the event." (Id.) Finally, the
committee expressed concerns for Dr. Sugarbaker's apparent lack of "self-awareness."
(Id.) According to the Appellate Review Committee:




       4
        "A laparoscopic cholecystectomy is a . . . method of performing gallbladder
surgery by use of a laparoscope, which allows the surgeon to see inside the patient and
perform the surgery without opening the patient's abdominal cavity." (Appellee's Br.
at 16 n.7.)
                                             5
        [Dr. Sugarbaker's] lack of self-awareness precludes him from being self-
        critical about his surgical skills, which interferes with his abilities to
        improve in certain areas, seek appropriate assistance, or decline to perform
        some procedures or in some contexts, such as trauma. This perceived lack
        of self-awareness is consistent with the Executive Committee's concerns
        about Dr. Sugarbaker's judgement [sic].

(Id.)

       In view of the Appellate Review Committee's decision to provisionally reinstate
Dr. Sugarbaker for one year, the SSM Board voted to modify in part, and to reverse in
part, the Executive Committee's recommendation to permanently suspend Dr.
Sugarbaker's privileges. According to the Bylaws, when the Board's decision is contrary
to the Executive Committee's recommendation, the Executive Committee may request
a Joint Conference Committee to review the matter. The Joint Conference Committee
is comprised of three members of the SSM Board and three members of the Executive
Committee. In this case, the Joint Conference Committee essentially followed the
Appellate Review Committee's decision and recommended that Dr. Sugarbaker be
reappointed to the provisional staff for one year, subject to a host of substantial
restrictions and conditions. The SSM Board followed the recommendations of the
Appellate Review Committee and the Joint Conference Committee. Dr. Sugarbaker was
eventually terminated for failing to abide by the restrictions and conditions attached to
his provisional reappointment.

      In accordance with Missouri law, see Mo. Ann. Stat. § 383.133 (1991), St. Marys
reported its final action to the Missouri State Board of Registration for the Healing Arts.
On the National Practitioner Data Bank adverse action report, St. Marys selected an
"Adverse Action Classification Code" corresponding to incompetence / malpractice /
negligence.




                                             6
       Dr. Sugarbaker filed suit against St. Marys in August 1997, alleging violations
of the Sherman Act, breach of contract, tortious interference with a business expectancy,
intentional and negligent infliction of emotional distress, and libel. St. Marys moved to
dismiss the complaint. The district court denied St. Marys' motion to dismiss and
refused to certify its decision for an immediate appeal pursuant to 28 U.S.C. § 1292(b).
After Dr. Sugarbaker amended his complaint, St. Marys filed a second motion to dismiss
which the district court likewise denied. St. Marys also filed a motion for summary
judgment on the basis of immunity under the HCQIA. The district court denied this
motion as being premature. After the close of discovery, St. Marys filed a second
HCQIA-based summary judgment motion. St. Marys also filed a motion for summary
judgment on the merits of Dr. Sugarbaker's claims. The district court granted St. Marys'
motion for HCQIA immunity and denied as moot St. Marys' motion for summary
judgment on the merits.

      Dr. Sugarbaker appeals the district court's judgment granting St. Marys immunity
under the HCQIA. St. Marys cross-appeals the district court's denial of its motions to
dismiss.

                        II. The Summary Judgment Record

      Dr. Sugarbaker first argues that the district court considered unauthenticated
documents in ruling on St. Marys' HCQIA summary judgment motion. Therefore,
according to Dr. Sugarbaker, summary judgment was improperly granted. We disagree.

       St. Marys' first HCQIA summary judgment motion included an affidavit
authenticating the peer review record that was attached to the motion. (See J.A. at
1122-23.) Dr. Sugarbaker has not identified to this court what evidence, if any, in the
proffered peer review record changed between St. Marys' first and second HCQIA
motions. Even assuming that the peer review record submitted with St. Marys' second
HCQIA motion included unauthenticated material in addition to the previously

                                           7
authenticated material, Dr. Sugarbaker has failed to show how the district court's
reliance on such material was other than harmless error. See Dautremont v. Broadlawns
Hosp., 

, 295 (8th Cir. 1987) (requiring a plaintiff to show he was
prejudiced by a district court's reliance on unauthenticated documents). In his reply
brief, Dr. Sugarbaker suggests that he has demonstrated the unreliability and falseness
of St. Marys' exhibits. (See Appellant's Reply Br. at 6 (citing J.A. at 2583 n.3, 2587-
88).) We have carefully reviewed the cited passages and conclude that while these
passages arguably reflect Dr. Sugarbaker's general displeasure with the peer review
record, they fall far short of calling into question the authenticity or reliability of any
particular document or exhibit. Therefore, we hold that the district court did not
improperly grant summary judgment on the basis of an unauthenticated record. Out of
an abundance of caution, however, we have attempted to confine our review to those
portions of the record that were submitted and authenticated with St. Marys' first
HCQIA motion.

                                III. HCQIA Immunity

      "Congress passed the [HCQIA] 'to improve the quality of medical care by
encouraging physicians to identify and discipline physicians who are incompetent or
who engage in unprofessional behavior.'" Mathews v. Lancaster Gen. Hosp., 

, 632 (3d Cir. 1996) (quoting H.R. Rep. No. 903, 99th Cong., 2d Sess. 2 (1986)).
Congress believed that effective peer review would be furthered "by granting limited
immunity from suits for money damages to participants in professional peer review
actions." 

U.S.C. §§ 11101(5), 11111(a)).

      The HCQIA defines the term "professional review action" to mean

      an action or recommendation of a professional review body which is taken
      or made in the conduct of professional review activity, which is based on
      the competence or professional conduct of an individual physician (which

                                            8
      conduct affects or could affect adversely the health or welfare of a patient
      or patients), and which affects (or may affect) adversely the clinical
      privileges . . . of the physician.

42 U.S.C. § 11151(9). See also 

(noting that the term
"'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").

       In order for there to be immunity under the HCQIA, the professional review
action must be taken:

      (1)    in the reasonable belief that the action was in 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). See also Wayne v. Genesis Med. Ctr., 

, 1148 (8th
Cir. 1998). The HCQIA further creates a presumption that a professional review action
meets these standards "unless the presumption is rebutted by a preponderance of the
evidence." 

(citing 42 U.S.C. § 11112(a)). Hence, Dr.
Sugarbaker must rebut the statutory presumption that St. Marys' actions comply with the
HCQIA's standards. Further, we have held that the reasonableness requirements



                                           9
contained in section 11112(a) necessitate an objective inquiry. See 

circuits that have applied an objective standard).

       It is well settled that we review the grant of summary judgment de novo, and we
apply the same standards as the district court. See 

. The
statutory presumption included in section 11112(a) adds a rather unconventional twist
to the burden of proof in our summary judgment standard of review, but "the
determination of whether a given factual dispute requires submission to a jury must be
guided by the substantive evidentiary standards that apply to the case." Anderson v.
Liberty Lobby, Inc., 

, 255 (1986). Therefore, like the district court, we
must ask, "Might a reasonable jury, viewing the facts in the best light for [Dr.
Sugarbaker], conclude that he has shown, by a preponderance of the evidence, that [St.
Marys'] actions are outside the scope of § 11112(a)?" Austin v. McNamara, 

, 734 (9th Cir. 1992). Stated differently, we must determine whether "[Dr.
Sugarbaker] 'satisfied his burden of producing evidence that would allow a reasonable
jury to conclude that [St. Marys'] peer review disciplinary process failed to meet the
standards of HCQIA.'" Brader v. Allegheny Gen. Hosp., 

, 839 (3d Cir.
1999) (quoting Bryan v. James E. Holmes Reg'l Med. Ctr., 

, 1334 (11th
Cir. 1994), cert. denied, 

(1995)).

A.    The Restriction of Dr. Sugarbaker's Privileges

       Dr. Sugarbaker argues that St. Marys is not entitled to immunity because it did
not satisfy the objective standards of section 11112(a). We address each of the
requirements for immunity in order. It is important to reiterate that St. Marys is
presumed to have complied with the standards, and Dr. Sugarbaker bears the burden of
rebutting that presumption by a preponderance of the evidence.

      1.     Reasonable Belief that the Action Furthered Quality Health Care —
             Section 11112(a)(1)

                                         10
       The first inquiry is whether the professional review action was taken "in the
reasonable belief that the action was in the furtherance of quality health care." 42
U.S.C. § 11112(a)(1). Dr. Sugarbaker presents a host of arguments in his attempt to
rebut the statutory presumption of reasonableness that attaches to St. Marys' actions.
He first asserts that only one of the initial grounds used to justify the precautionary
suspension—the excess surgery times—survived to justify St. Marys' ultimate decision
to restrict his privileges. He further points to expert testimony suggesting that the peer
reviewers' concerns regarding excess surgery times were not worthy of serious
consideration. Therefore, according to Dr. Sugarbaker, there was no objectively
reasonable basis for imposing or continuing the original precautionary summary
suspension.

       These assertions, even when fully credited, miss the mark. The focus of our
inquiry is not whether the Executive Committee's initial concerns ultimately proved to
be medically sound. Rather, our objective inquiry focuses on whether the professional
action taken against Dr. Sugarbaker was taken "in the reasonable belief that the action
was in the furtherance of quality health care." 42 U.S.C. § 11112(a)(1).
       The Executive Committee initiated the peer review process after receiving
complaints regarding Dr. Sugarbaker's practice. It is undisputed that St. Marys imposed
the precautionary suspension only after further investigation revealed objective medical
concerns regarding: (1) delay in initiating an operation; (2) excessive surgical times; (3)
excessive blood loss; (4) questionable use of antibiotics; and (5) excess tissue removal
in breast biopsies.

       In fact, the record in this case includes ample evidence that concerns for quality
health care remained throughout the peer review process. For example, the Appellate
Review Committee enumerated specific concerns regarding Dr. Sugarbaker's practice.
With respect to Dr. Sugarbaker's long operating times in performing laparoscopic
cholecystectomies, the Appellate Review Committee's decision demonstrates that its

                                            11
concerns encompassed more than the economic aspect of the excessive operating times.
In particular, the Appellate Review Committee concluded that the excessive operating
times were attributable to Dr. Sugarbaker's inexperience with the procedure, and it
expressed concern that Dr. Sugarbaker failed to request any assistance in performing
these procedures despite his inexperience. (See J.A. at 985.) The Appellate Review
Committee further concluded that Dr. Sugarbaker had exhibited "an inability to respond
appropriately in crisis situations." (Id.) Finally, the Appellate Review Committee
concluded that Dr. Sugarbaker demonstrated "a lack of self-awareness" that
"preclude[d] him from being self-critical about his surgical skills, which interferes with
his abilities to improve in certain areas, seek appropriate assistance, or decline to
perform some procedures or in some contexts, such as trauma." (Id.)

       The Board's final decision restricting Dr. Sugarbaker's privileges and prohibiting
him from performing trauma surgery, emergency surgery, and laparoscopic
cholecystectomies is entirely consistent with the Appellate Review Committee's
conclusions. (See 

Thus, it is clear that concerns for health care quality
remained at the forefront throughout the peer review process. The fact that some of the
specific concerns shifted or changed over time does not rebut the presumption that St.
Marys restricted Dr. Sugarbaker's privileges "in the reasonable belief that the action was
in the furtherance of quality health care." 42 U.S.C. § 11112(a)(1).

       Dr. Sugarbaker also argues that because the Ad Hoc Committee recommended
that the precautionary suspension be lifted, there was no objectively reasonable basis
for continuing the suspension. This argument ignores the stated basis for the Ad Hoc
Committee's recommendation. The Ad Hoc Committee expressly stated that its
recommendation favoring Dr. Sugarbaker hinged on a lack of relevant information
regarding the reasons underlying the precautionary suspension. (See Appellant's Adden.
at 28.) Consequently, the Ad Hoc Committee's recommendation did not vindicate Dr.
Sugarbaker in the medical sense. In fact, the Ad Hoc Committee's recommendation did


                                           12
not specifically address any of the health care quality issues underlying the
precautionary suspension.

       Dr. Sugarbaker next argues that the Executive Committee's determinations were
not objectively reasonable because several members of that committee were allegedly
Dr. Sugarbaker's economic competitors. Dr. Sugarbaker, however, waived this issue
by failing to lodge a timely objection to the participation of any particular Executive
Committee member.5 See 

. Cf. 

(noting
that "[t]he Act contains no provision barring competitors from participating in
'professional review activities'").

       Next, Dr. Sugarbaker points to the affidavit of Dr. Carl Doerhoff, an independent
surgeon, which stated that the peer reviewers could not have entertained doubts as to
the quality of Dr. Sugarbaker's care. This evidence, however, is irrelevant to our
objective inquiry. Our focus is on the reasonableness of the peer reviewer's belief that
they were furthering quality health care. "[T]he Act does not require that the
professional review result in an actual improvement of the quality of health care."
Imperial v. Suburban Hosp. Ass'n, Inc., 

, 1030 (4th Cir. 1994). "[Dr.
Sugarbaker's] showing 'that [the] doctors reached an incorrect conclusion on a particular
medical issue because of a lack of understanding' does not 'meet the burden of
contradicting the existence of a reasonable belief that they were furthering health care
quality . . . .'" 

(quoting 

).



      5
        In his reply brief, Dr. Sugarbaker asserts that he had "repeatedly objected to
direct economic competitors who sat on various committees during the peer review
process (R. 2197-98)." (Appellant's Reply Br. at 18.) We have carefully reviewed the
portions of the record referred to by Dr. Sugarbaker, and we find no indication that Dr.
Sugarbaker ever raised a timely objection with respect to the participation of any
member of the Executive Committee. He objected to the participation of certain
members of the Ad Hoc Committee, the committee he now claims vindicated him.
                                           13
       Finally, to the extent Dr. Sugarbaker's case relies on inferences of a conspiracy to
oust him, we conclude that such inferences do not create any genuine issues of fact in this
case. In the HCQIA immunity context, the circuits that have considered the issue all
agree that the subjective bias or bad faith motives of the peer reviewers is irrelevant.
See, e.g., 

; 

; 

;

. We agree with the views of our sister circuits and now hold that
bad faith on the part of the reviewers is irrelevant to the objective inquiry under 42
U.S.C. § 11112(a). Moreover, Dr. Sugarbaker has produced no hard evidence of any
conspiracy, and the Appellate Review Committee concluded that no such conspiracy
existed. See Lujan v. Defenders of Wildlife, 

, 561 (1992) (noting that a
plaintiff may not rest on mere allegations to withstand a motion for summary judgment).

       In sum, Dr. Sugarbaker failed to produce sufficient relevant evidence to rebut the
presumption that St. Marys restricted his privileges in the reasonable belief that the
action was in furtherance of health care quality. St. Marys could have reasonably
concluded that by taking action, it was safeguarding and furthering the health care
interests of its patients.

      2.     Reasonable Fact Gathering — Section 11112(a)(2)

        In order to qualify for HCQIA immunity, St. Marys must have made a reasonable
effort to obtain the relevant facts. See 42 U.S.C. § 11112(a)(2). In assessing this issue,
we consider "whether the totality of the process leading up to the Board's 'professional
review action' . . . [evinces] a reasonable effort to obtain the facts of the matter."

. See also 

.

      St. Marys subjected its concerns regarding Dr. Sugarbaker to an exhaustive review
process, including expert retrospective reviews and multiple fact-finding hearings during
which Dr. Sugarbaker was permitted extensive trial-type rights. Moreover, St. Marys


                                            14
conducted an exhaustive appellate-level review during which Dr. Sugarbaker was again
given extensive rights.

        Notwithstanding the processes employed by St. Marys, Dr. Sugarbaker argues that
certain alleged deficiencies undermine the reasonableness of the fact gathering process
in his case. We have carefully reviewed Dr. Sugarbaker's arguments and the record, and
we find no merit in any of his contentions. We agree with the view expressed by the
district court; "[i]f [St. Marys] did nothing else, it undertook a thorough investigation of
the facts." (Appellant's Adden. at 9.)

      3.     Adequate Notice and Hearing Procedures — Section 11112(a)(3)

       The failure to provide a physician with adequate notice and fair procedures
precludes immunity under the HCQIA. See 42 U.S.C. § 11112(a)(3). Dr. Sugarbaker
asserts that evidence of alleged bias, ex parte communications, insufficient notice of
issues, and an inadequate investigation rebut the presumption that St. Marys provided
adequate notice and due process in this case. Dr. Sugarbaker's arguments in this regard
are largely disjointed, conclusory, and sometimes confusing. He waived his complaint
that bias tainted his hearing before the Executive Committee by failing to make
"contemporaneous objections to the manner in which the hearing procedures were
conducted." 

. Further, his assertion that an insufficient
investigation resulted in an unfair hearing is, as demonstrated above, unsupported by any
substantive analysis.

       Dr. Sugarbaker argues that an alleged "shared counsel" arrangement between the
Appellate Review Committee and the Executive Committee could reasonably be viewed
as allowing improper ex parte contacts that undermined the fairness of the hearing
procedures in his case. Kathleen Boozang represented the Appellate Review Committee.
Ms. Boozang is a law professor at Seton Hall University School of Law. She is also "of
counsel" with the same law firm, Greensfelder, Hemker & Gale, P.C., that represented

                                            15
St. Marys throughout the peer review process and this lawsuit. At the Appellate Review
Committee hearing, Ms. Boozang introduced herself and her affiliation with the
Greensfelder firm, but Dr. Sugarbaker failed to object to her participation until well after
the hearing. Consequently, even if we assume that Ms. Boozang's participation was
improper, it appears that Dr. Sugarbaker has waived this issue. See 

. In view of Dr. Sugarbaker's failure to timely object to Ms. Boozang's
participation, and the fact that St. Marys provided Dr. Sugarbaker with multiple levels
of review, we conclude that the potential for ex parte contacts in one phase of the peer
review process does not detract from the overall fairness of the procedures employed in
this case.6

      Dr. Sugarbaker also argues that he was afforded insufficient notice of St. Marys'
concerns. Specifically, Dr. Sugarbaker contends that he was deprived of "a fair hearing
due to the continually changing charges brought against him." (Appellant's Br. at 47.)
We disagree. The fact that the peer reviewers' concerns shifted as the investigation
continued does not alone undermine the fairness of the procedures employed. During
each phase of the peer review process, St. Marys notified Dr. Sugarbaker of his
procedural rights under the hospital's bylaws. Before each hearing, St. Marys notified
Dr. Sugarbaker of its concerns.

       Despite his contention that the changing charges resulted in an unfair hearing, Dr.
Sugarbaker points to only one specific instance when he was confronted with a medical
issue for which he was not given specific, prior notice. During the hearing before the
Executive Committee, one of the committee members raised concerns regarding patient
feeding in a colectomy case. Prior to this time, the peer reviewer's concern with respect


      6
         Dr. Sugarbaker would also be hard pressed to show meaningful prejudice
attributable to Ms. Boozang's participation. The Appellate Review Committee rejected
the Executive Committee's recommendation that St. Marys completely terminate Dr.
Sugarbaker's privileges.
                                            16
to the colectomy case had focused on Dr. Sugarbaker's possibly dangerous delay in
initiating the operation. On our review of the record, however, it is clear that the
questions posed with respect to patient feeding were logically related to the committee's
previously identified concerns. For example, in his defense, Dr. Sugarbaker referred to
literature that arguably supported nonoperative management of similar cases with
antibiotics and nutrition. (See J.A. at 622.) Dr. Sugarbaker also presented the testimony
of an expert witness to support his contention that he managed the case appropriately.
(See 

A member of the Executive Committee asked this expert about the
proper nutritional management of patients in similar circumstances. (See 

The
expert's response called into question Dr. Sugarbaker's care with respect to feeding this
patient. In view of the foregoing, we cannot say that the Executive Committee's concern
regarding the patient feeding issue was not so unexpected that it detracted from the
fairness of the process employed in this case. In any event, Dr. Sugarbaker had the
opportunity to respond to this matter when he presented his case to the Appellate Review
Committee. (See, e.g., 

      In summary, we conclude that Dr. Sugarbaker has failed to present sufficient
evidence to rebut the presumption that St. Marys complied with section 11112(a)(3).

      4.     Reasonable Belief that the Action was Necessary — Section 11112(a)(4)

       The final inquiry under section 11112(a) is whether St. Marys undertook the
professional review action "in the reasonable belief that the action was warranted by the
facts known after [a] reasonable effort to obtain facts" and after providing adequate
notice and hearing procedures. 42 U.S.C. § 11112(a)(4). "Our analysis under §
11112(a)(4) closely tracks our analysis under § 11112(a)(1)." 

.

      Dr. Sugarbaker's arguments regarding this fourth inquiry are brief and conclusory.
He contends that the opinions of several independent surgeons rebut the statutory
presumption favoring St. Marys, and establish a genuine issue of fact precluding

                                           17
summary judgment. To the extent Dr. Sugarbaker offers expert testimony to cast doubt
upon the correctness of the medical determinations underlying St. Marys' actions, such
matters are of only marginal relevance to our objective inquiry.

       Although not every panel [involved in the multi-step review process]
       reached identical conclusions about the necessity of suspending [Dr.
       Sugarbaker's] privileges, a plaintiff's showing "that [the] doctors reached an
       incorrect conclusion on a particular medical issue because of a lack of
       understanding" does not "meet the burden of contradicting the existence of
       a reasonable belief that they were furthering health care quality in
       participating in the peer review process."

(quoting 

).

        Moreover, with respect to any expert opinions Dr. Sugarbaker prepared for
litigation in court,7 those opinions "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 these experts "were not among 'the facts known' at
the time of the professional review action." 

failed to present sufficient evidence to rebut the presumption that
St. Marys has complied with the requirements of 42 U.S.C. § 11112(a)(4).

B.     Committee Action Versus Hospital Action

       Dr. Sugarbaker argues that even if St. Marys enjoys HCQIA immunity for the
Board's decision to restrict his privileges, the statute provides no immunity for the actions
of St. Marys' peer review committees. Therefore, according to Dr. Sugarbaker, St.

       7
        On this issue, Dr. Sugarbaker's brief does not indicate which expert's opinions,
if any, were available to the SSM Board or any of the peer review participants. (See
Appellant's Br. at 48-49.)
                                             18
Marys remains vicariously liable for the allegedly improper precautionary summary
suspension.

       As an initial matter, we reject Dr. Sugarbaker's premise that the precautionary
suspension was improper. St. Marys' Medical Staff Bylaws permit the Executive
Committee to impose a precautionary summary suspension of "all or a portion of the
admitting or clinical privileges of a Practitioner if necessary to the best interests of
patient care." (J.A. at 229.) In this case, the Executive Committee imposed the
precautionary suspension only after the Surgery Review Committee's review of 24 of Dr.
Sugarbaker's surgical cases raised concerns with respect to Dr. Sugarbaker's practice.
(See 

293.) Furthermore, under the HCQIA's emergency provisions, summary
suspensions, "subject to subsequent notice and hearing or other adequate procedures,"
do not result in the loss of immunity "where the failure to take such an action may result
in an imminent danger to the health of any individual." 42 U.S.C. § 11112(c)(2). In a
footnote, Dr. Sugarbaker contends that St. Marys and the Executive Committee are not
entitled to the protections of section 11112(c)(2) because Dr. Sugarbaker had no patients
admitted to St. Marys at the time the Executive Committee imposed the precautionary
suspension. (See Appellant's Br. at 50 n.10.) We see no reason to limit the HCQIA
emergency provisions to situations in which there is a currently identifiable patient whose
health may be jeopardized. "[T]he [HCQIA] does not require imminent danger to exist
before a summary restraint is imposed. It only requires that the danger may result if the
restraint is not imposed." Fobbs v. Holy Cross Health Sys. Corp, 

, 1443
(9th Cir. 1994), cert. denied, 

(1995).

      We also reject Dr. Sugarbaker's rather tortured interpretation of the HCQIA. Dr.
Sugarbaker selectively cites portions of various subsections of the HCQIA to create a
patchwork argument that only hospitals, not committees or medical staff, can implement
professional review actions, and therefore, HCQIA immunity applies only to actions
taken by hospitals and not actions taken by committees. Thus, according to Dr.


                                            19
Sugarbaker, St. Marys cannot qualify for immunity for the actions of the Executive
Committee.

       Even assuming arguendo that Dr. Sugarbaker has uncovered a statutory anomaly
whereby the various definitions contained in the HCQIA do not dovetail perfectly
together, we are persuaded that Dr. Sugarbaker's selective reading of the statute cannot
stand because it would undermine Congress's clear intent in enacting the statute. When
the HCQIA is viewed as a whole, there is no doubt that Congress intended to improve
the quality of our nation's health care by encouraging professional self-regulation. See
42 U.S.C. § 11101; Addis v. Holy Cross Health Sys. Corp., 

, 485 (7th Cir.
1996) (discussing the HCQIA's package of incentives and disincentives that are designed
to further self-regulation in the medical profession). Accepting Dr. Sugarbaker's asserted
statutory construction would seriously undermine Congress's intent. If hospitals such as
St. Marys could never receive immunity for the actions taken by their peer review
committees, there would be a gaping hole in the HCQIA's protective scheme. Such a
situation would discourage peer review activities and hamper the medical profession's
self-regulation efforts.

C.    Summary — HCQIA Immunity

       We hold that Dr. Sugarbaker has failed to satisfy his burden of producing
sufficient relevant evidence that would allow a reasonable jury to conclude by a
preponderance of the evidence that St. Marys is not entitled to statutory immunity under
the HCQIA.

                 IV. Dr. Sugarbaker's Claim for Injunctive Relief

      HCQIA immunity is limited to suits for damages; there is no immunity from suits
seeking injunctive or declaratory relief. See 42 U.S.C. § 11111(a)(1); 

. Dr. Sugarbaker's first amended complaint included a prayer for injunctive relief

                                           20
that he now contends survived summary judgment.8 Dr. Sugarbaker argues, therefore,
that his claim for injunctive relief survives even if St. Marys is entitled to HCQIA
immunity with respect to his damages claims. St. Marys contends, however, that Dr.
Sugarbaker has waived or otherwise abandoned his right to seek injunctive relief in this
case.

        In Imperial, the Fourth Circuit held that because the physician/plaintiff had
abandoned his prayer for injunctive relief before the district court, the appeals court
would not reinstate the claim. 

. The court considered the fact that
the physician filed no motion for injunctive relief, and failed to press the issue when "the
vitality of the complaint, in its entirety, was put to the test on an immunity defense." 

the physician "made no overture to the district court to suggest that he had a
continuing interest in pursuing injunctive relief which would survive the immunity
defense." 

's case is almost indistinguishable from Imperial in this regard. Dr.
Sugarbaker never actively pursued any injunctive relief before the district court. He

       8
         This argument calls into question our jurisdiction to consider these appeals.
See In re Grand Jury Subpoenas Duces Tecum, 

, 374 (8th Cir. 1996) ("It
is the duty of the Court of Appeals to satisfy itself as to its jurisdiction to consider an
appeal . . . .") (internal quotation omitted). If the district court did not dispose of all of
Dr. Sugarbaker's claims, there has been no final order, and consequently, there is no
appellate jurisdiction. See id.; 28 U.S.C. § 1291 (1994). The district court did not
expressly grant summary judgment in favor of St. Marys with respect to Dr.
Sugarbaker's claim for injunctive relief. Further, neither the district court's order nor
the clerk's judgment expressly states that the court intended to dispose of the entire case
when it granted St. Marys' motion for immunity under the HCQIA. On the other hand,
the court denied as moot St. Marys' motion for summary judgment on the merits, and
the district court's docket sheet indicates that the court's decision terminated the case.
(See J.A. at 14.) Thus, we are satisfied that the district court's order was indeed final,
and we have jurisdiction to consider the present appeals.


                                              21
never moved for an injunction, and after the district court entered its judgment on St.
Marys' HCQIA motion, Dr. Sugarbaker did not seek to clarify the status of his prayer for
injunctive relief. In short, like the physician in Imperial, Dr. Sugarbaker never indicated
to the district court that he had a "continuing interest in pursuing injunctive relief."

. Therefore, we hold that Dr. Sugarbaker has abandoned his
prayer for injunctive relief.

                                     V. Conclusion

       In summary, we hold that the district court did not improperly grant summary
judgment on the basis of an unauthenticated record. We further hold that Dr. Sugarbaker
failed to present sufficient evidence to rebut the presumption that St. Marys is entitled
to immunity under the HCQIA, and that St. Marys is also entitled to immunity for the
actions taken by its peer review committees. Finally, we hold that Dr. Sugarbaker has
abandoned his prayer for injunctive relief. In view of our decision on Dr. Sugarbaker's
appeal, we do not reach the merits of St. Marys' cross-appeal.

      The district court's judgment is affirmed.

      A true copy.

             Attest:

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




                                            22