Charles P. Ehlen, M.D., et al., Appellants, vs. The St. Cloud Hospital, et al., Respondents.

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480 A. 08, subd. 3 (1994) State of Minnesota in Court of Appeals C4-96-632 Charles P. Ehlen, M.D., et al., Appellants, vs. The St. Cloud Hospital, et al., Respondents. Filed October 15, 1996 Affirmed Klaphake, Judge Stearns County District Court File No. C2-95-798 Terence M. Fruth, Douglas L. Elsass, Fruth & Anthony, P.A., 3750 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for Appellants) Kevin J. Hughes, Timothy S. Murphy, Hughes, Mathews & Didier, P.A., 110 Sixth Avenue South, Suite 205, P.O. Box 548, St. Cloud, MN 56302-0548 (for Respondents) Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Klaphake, Judge. Unpublished Opinion KLAPHAKE, Judge (Hon. Vicki Landwehr, District Court Trial Judge) Following a lengthy peer review process, The St. Cloud Hospital (the hospital) suspended the clinical privileges of appellant Charles P. Ehlen, M.D., for his failure to comply with its 30-minute ``immediacy of care'' rule. In response, Ehlen sued respondents, the hospital and four urologists affiliated with it, seeking monetary and declaratory relief. Respondents moved for summary judgment, claiming immunity under the Health Care Quality Improvement Act of 1986 (HCQIA), 42 U.S.C. §§ 11101-11152 (1994), and this state's health-care ``review organizations'' statute, Minn. Stat. § 145.63 (1994). The district court granted summary judgment and awarded costs and attorney fees to respondents, and Ehlen appealed. Because there are no genuine issues of material fact and the district court properly applied the law, and because the district court did not abuse its discretion in awarding costs and fees, we affirm. Decision I. The HCQIA encourages medical peer review by granting limited immunity in suits brought by disciplined physicians. If a ``professional review action'' meets certain due process and fairness requirements, then review participants shall not be liable for money damages. 42 U.S.C. § 11111(a). To receive the benefit of immunity, the professional review action must be taken: (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 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). Id. § 11112(a). An action is presumed to have met these four fairness standards ``unless the presumption is rebutted by a preponderance of the evidence.'' Id. The HCQIA grants broad discretion to a hospital board with regard to a staff privileges decision. Bryan v. James E. Holmes Regional Medical Ctr., 33 F.3d 1318, 1337 (11th Cir. 1994), cert. denied, 115 S. Ct. 1363 (1995). On review of such a decision, a court's role is not to substitute its judgment for that of the hospital's governing board or to reweigh the evidence regarding the termination of medical staff privileges. Id. Suspension of Privileges The hospital's department of urology adopted a rule that, within 30 minutes of notice, the attending urologist is required either to be personally available to care for a patient or to have an alternative urologist available, with whom prior arrangements had been made. Ehlen's failure to comply with this rule ultimately led to his suspension. Ehlen's suspension qualifies as a ``professional review action,'' defined as an action by a hospital ``based on the competence or professional conduct of an individual physician.'' 42 U.S.C. § 11151(9). Ehlen argues that the district court erred in concluding that the hospital suspended him ``in the reasonable belief that the action was in the furtherance of quality health care'' or ``in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts.'' Id. § 11112(a) (1), (4). While Ehlen claims that material fact issues exist with regard to the hospital's reasonable belief, these purported ``issues of fact'' are based on bare and unsubstantiated allegations of malice directed toward him by the respondent urologists.(1) [Footnote] (1)Ehlen claims that the board of directors might have found a suspension inappropriate if it had known that the department of urology voted to adopt the 30-minute rule even though the respondent urologists fail to adhere to this standard at other hospitals. Ehlen further claims that the board might have arrived at a different decision if it had known that the respondent urologists ``had worked for years to force [him] from his practice.'' Evidence that the parties do not like each other or are competitors is insufficient to establish malice. Bryan, 33 F.3d at 1335. And in deciding whether a hospital's actions meet the fairness standards, [t]he test is an objective one, so bad faith is immaterial. The real issue is the sufficiency of the basis for the [hospital's] actions. Austin v. McNamara, 979 F.2d 728, 734 (9th Cir. 1992) (footnote omitted). Ehlen offers no evidence to challenge the reasonableness of the hospital's actions, and he has failed to rebut the presumption of reasonableness under sections 11112(a) (1) or (4).(2) [Footnote] (2)On appeal, Ehlen does not challenge the district court's conclusion that the suspension satisfied the remaining fairness standards set out in sections 11112(a) (2) and (3). The district court therefore did not err in concluding respondents were immune from liability for their actions in suspending Ehlen and in granting respondents summary judgment on this issue. Enactment of 30-Minute Rule Professional review activities generally involve individual physicians. Bryan, 33 F.3d at 1334 n.29 (termination of physician's medical staff privileges); Austin, 979 F.2d at 737 (investigation and suspension of physician). The district court therefore properly concluded that because enactment of the 30-minute rule affected all urologists in the department, not just an individual physician, it did not meet the HCQIA's definition of a ``professional review activity.'' 42 U.S.C. �(10).(3) [Footnote] (3)By notice of review, respondents challenge the district court's conclusion that enactment of the 30-minute rule was not part of a ``professional review action.'' The district court instead reviewed enactment of the rule under Minn. Stat. 𨳩.63 (1994), the state's health-care ``review organizations'' statute. Section 145.63 contains two standards of review: a malice standard for actions adversely affecting an individual doctor and a reasonable belief standard for rule-making decisions affecting everyone equally. Applying the reasonable belief standard, the district court concluded that respondents were immune from liability for enacting the 30-minute rule. Even if we apply the more stringent malice standard, Ehlen failed to produce evidence sufficient to raise a material fact issue as to whether respondents acted with bad motive. Rather than produce evidence of affirmative actions by respondents tending to exclude the possibility that they were acting out of a reasonable concern over quality of care or otherwise challenge the reasonableness of respondents' actions, Ehlen again relies on broad and unsubstantiated allegations of malice. And an examination of the events leading to enactment of the rule and Ehlen's ultimate suspension negate the existence of malice or bad motive on respondents' part. The enactment of the rule and suspension of Ehlen's clinical privileges resulted from Ehlen's well-documented history of failing to provide immediate care for his patients. The hospital's response to this history was a progressive disciplinary process lasting more than five years, and including informal warnings, probation, establishment of the rule, and finally suspension of Ehlen's privileges. At each stage, Ehlen was afforded ample procedural protections and an opportunity to be heard. And while Ehlen suggests that he has been singled out and subjected to an unreasonable standard, the record indicates that Ehlen's status as a sole practitioner should not have affected his ability to comply; moreover, Ehlen's opinion that the rule was unnecessary is not enough to suggest malice or otherwise question respondents' intentions in enacting it. Finally, given the long history of Ehlen's conduct and the hospital's efforts to reform that conduct, Ehlen cannot complain that his suspension constituted disproportionate discipline. We therefore conclude that the district court did not err in determining that respondents were immune from liability for enacting the 30-minute rule. II. A district court may order a continuance [s]hould it appear from the affidavits of a party opposing the [summary judgment] motion that the party cannot for reasons stated present, by affidavit, facts essential to justify the party's opposition. Minn. R. Civ. P. 56.06. In deciding whether a continuance should be granted to allow more time for discovery, a district court must focus on two issues: first, whether the party seeking the continuance is acting from a good faith belief that material facts will be discovered, or is merely engaged in a ``fishing expedition,'' and second, whether the party has been diligent in seeking discovery prior to bringing the motion. Bixler by Bixler v. J.C. Penney Co., 376 N.W.2d 209, 216-17 (Minn. 1985). Ehlen argues the district court abused its discretion by not continuing the summary judgment motion pending further discovery on the issue of malice. In his affidavit opposing the motion for summary judgment, Ehlen alleged that hospital staff members informed him that the respondent urologists had directed them to prepare documents critical of Ehlen's practice and to provide these documents to hospital officials. Ehlen, however, failed to submit affidavits from these staff members or otherwise explain his inability to obtain these affidavits. In addition, Ehlen's motion to compel discovery sought documents relating to respondents' business and financial plans and depositions of the respondent urologists to determine whether their conduct was subject to immunity. These discovery requests were more along the lines of a fishing expedition rather than an attempt to obtain facts essential to oppose respondents' summary judgment motion. The district court therefore did not abuse its discretion by refusing to grant a continuance under rule 56.06. III. Ehlen seeks review of the district court's order granting attorney fees and costs under 42 U.S.C. § 11113. A review of the district court file reveals that judgment has not been entered on the order granting attorney fees and costs. An order for the recovery of money, including attorney fees, generally must be reduced to judgment prior to appeal. Sheeran v. Sheeran, 481 N.W.2d 578, 579 (Minn. App. 1992). We nevertheless extend review to the district court's order granting fees and costs ``[i]n the interests of judicial economy.'' Id.; See also Minn. R. Civ. App. P. 103.04. Three federal circuits have explicitly adopted an abuse of discretion standard to review awards of attorney fees and costs under the HCQIA. Muzquiz v. W.A. Foote Memorial Hosp., 70 F.3d 422, 432 (6th Cir. 1995); Smith v. Ricks, 31 F.3d 1478, 1487 (9th Cir. 1994), cert. denied, 115 S. Ct. 1400 (1995); Johnson v. Nyack Hosp., 964 F.2d 116, 123 (2nd Cir. 1992). The district court in this case determined that the hospital was a ``substantially prevailing party'' on Ehlen's claims with regard to the suspension of medical privileges and that Ehlen's conduct during litigation was ``frivolous, unreasonable, without foundation, or in bad faith.'' See 42 U.S.C. § 11113. These determinations are not without basis in the record and do not represent an abuse of the district court's discretion. In addition, the district court properly limited its award to fees and costs expended in defending the hospital's suspension of Ehlen's privileges. We therefore affirm the award of fees and costs. Affirmed.