Singh v. Blue Cross/Blue Shield of Massachusetts, Inc.

United States Court of Appeals
For the First Circuit

No. 01-2586

KUNWAR S. P. SINGH, M.D.

Plaintiff, Appellant,

v.

BLUE CROSS/BLUE SHIELD OF MASSACHUSETTS, INC. AND BENJAMIN W.
WHITE, M.D.,

Defendants, Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Morris Lasker, District Judge]

Before

Torruella and Lipez, Circuit Judges, and
McAuliffe, District Judge*

William A. Curry for appellant.
Nicholas J. Nesgos, with whom Posternak, Blankstein &
Lund, LLP was on brief, for appellees.

August 27, 2002

_______________________

*Of the District of New Hampshire, sitting by designation.
 LIPEZ, Circuit Judge. In a case of first impression in

this circuit, we must review the application of the Health Care

Quality Immunity Act (HCQIA), 42 U.S.C. §§ 11101-11152, to the

contention of Dr. Kunwar Singh that defendants Blue Cross/Blue

Shield of Massachusetts, Inc. ("Blue Cross") and Dr. Benjamin White

(as Blue Cross's auditor) violated Dr. Singh's rights in numerous

ways during their review of his treatment record. Blue Cross and

Dr. White counter that in actions stemming from such peer reviews,

HCQIA provides immunity from liability for money damages. After

analyzing the summary judgment record, we conclude that Dr. Singh
could not establish before a reasonable jury that Blue Cross was

not entitled to HCQIA immunity, thereby precluding his recovery of
damages. Dr. Singh's claims also fail on the merits, thereby
precluding any relief. Thus we affirm the district court's grant

of summary judgment to Blue Cross and Dr. White.

I. Background

We describe the background of the case here, adding more
detail below as it becomes relevant to the legal analysis. Since
we are reviewing the grant of a motion for summary judgment, we
view the facts "in the light most favorable to the nonmovant."

Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st Cir. 2002).

Dr. Singh is a physician specializing in internal

medicine. Before 1992, he provided health care for members of the

Bay State Health Care, Inc. ("Baystate") and Blue Cross insurance

plans. Dr. Singh provided services for two types of patients

insured by Blue Cross: those insured under HMO Blue, a managed care

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plan, and those insured under traditional fee-for-service or

"indemnity" plans.

After Baystate merged with Blue Cross in 1992, Blue Cross
offered a "Bay State Health Care" line of coverage to former Bay

State subscribers. Blue Cross denied several physicians

participation in the Bay State Healthcare Network "due to
utilization review reasons." According to a letter sent on

September 30, 1993, by Susan Gretkowski of Blue Cross's legal

department, Dr. Singh "was denied participation because of

excessive utilization rates1 in the former Bay State Health Care."

Gretkowski's letter explained:

The former Medical Director of Bay State Health
Care . . . met with Dr. Singh on July 29, 1992 to
discuss the excessive utilization rates. Bay State
then began an investigation of Dr. Singh's
practice, but the investigation was never
completed. Blue Cross and Blue Shield offers at
this time to complete that audit, and then re-
evaluate Dr. Singh's practice based on the results
of that audit.
Dr. Singh and Blue Cross then negotiated the terms and scope of the

audit. According to an Audit Agreement signed by both parties on
October 10, 1994, Blue Cross agreed to "consider admitting [Dr.

Singh] into its Bay State Product if the results of the audit

[were] positive." In return for this opportunity, Dr. Singh also

released Blue Cross and its employees from liability for claims

arising out of the audit.

1
Although the term is not explicitly defined in the record,
we assume that "utilization rate" simply refers to the amount of
health care services consumed by Dr. Singh's patients and
authorized by Dr. Singh.

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 The Agreement set forth a procedure for conducting the

audit. First, Blue Cross would randomly select twenty-five

patients from Dr. Singh's HMO Blue practice. Next, Dr. Singh was
to turn over both the medical and the claims files of these

patients. Within fifteen days after Blue Cross received the

relevant records from Dr. Singh, both parties were to select a
mutually acceptable peer reviewer. After he or she received the

records, the reviewer would then have sixty days to evaluate them.

Blue Cross promised to offer Dr. Singh a "one year non-self

renewing contract" if the review was positive.

The parties initially could not agree on a peer reviewer,

with Dr. Singh refusing to accept any of the physicians nominated

by Blue Cross. Although the physician nominated by Dr. Singh
worked at the same hospital as Dr. Singh, Blue Cross agreed to

permit him to conduct the review. However, when that physician

received the relevant paperwork, he decided not to conduct the
review. After Dr. Singh failed to respond to Blue Cross's request

that he nominate another physician, Blue Cross appointed Dr. Walter

Clayton to perform the review.2

Dr. Clayton's review (the "first audit") was based on the

random sample of twenty-five of Dr. Singh's patient files from
1992-1994. Dr. Clayton found an "excessive use of pain medication
for chronic problems." Dr. Clayton also identified unduly lengthy

2
While Blue Cross was arranging for this review, it also sent
a letter dated June 13, 1994, notifying Dr. Singh that he would be
terminated as a Blue Cross provider. Blue Cross admitted that this
letter was sent erroneously. It was never implemented.

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regimens of antibiotic treatment and overutilization of lab tests

and office visits. Dr. Clayton concluded his report with some

positive remarks, praising Dr. Singh's careful treatment of low-
income patients and his holistic approach to diagnosis. However,

Dr. Clayton indicated that the "documented treatment showed

evidence of care somewhat below the recognized standard of care."
On the basis of Dr. Clayton's findings, the five members

of the Blue Cross Remedial Action Committee ("RAC"), all

physicians, decided that Dr. Singh should not be offered a Baystate

contract and that there should be a second audit to determine

whether Dr. Singh was fit to continue as a provider in Blue Cross's

HMO Blue and indemnity plans. Pending the results of the audit, to

be conducted by Dr. Benjamin W. White, the RAC also recommended
that Blue Cross "freeze" Dr. Singh's "HMO Blue panel"--that is,

prevent him from accepting new HMO Blue patients. Blue Cross did

not implement that last recommendation, even though the RAC never
voted to rescind it.

Dr. White's review (the "second audit") concentrated on

patients to whom Dr. Singh had prescribed narcotics. Joan Downey,

Peer Review Coordinator at Blue Cross, requested records from Dr.

Singh's office for cases from January 1, 1995 to mid-1996. The RAC

ordered her to include all of the patient files which contained

prescriptions for narcotics. Twenty-one of the ninety-seven did

so. Downey also included a random selection of sixteen of the

remaining seventy-six patient files, forwarding a total of thirty-

seven patient files for Dr. White's review.

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 Dr. White's audit was much more critical of Dr. Singh

than Dr. Clayton's audit. Dr. White concluded that "[c]ompetent

expert care is rarely seen;" he found substandard care in thirty-
three of the thirty-seven cases that he reviewed. However, the

second audit contained two flaws. First, Dr. White assumed

incorrectly that the patient files were selected randomly. Downey
failed to inform him that the RAC ordered her to include all the

files of patients to whom Dr. Singh had prescribed narcotics in the

sample. In addition, Blue Cross included four patients who were

not patients of Dr. Singh, all of whom were prescribed narcotics,

and were included in Dr. White's list of patients to whom Dr. Singh

gave substandard care.

Through Joan Downey of Blue Cross, Dr. White submitted
two documents to the RAC: a letter identifying broad areas of

concern with Dr. Singh's practice, and a "special report" detailing

Dr. White's concerns about particular cases handled by Dr. Singh.
He insists that he did not discuss the report with anyone else.

The RAC considered both documents on September 12, 1996, and

reviewed approximately fifteen of the thirty-seven patient files

reviewed by Dr. White. After discussing the matter, the RAC

unanimously recommended termination of Dr. Singh's participation in

all Blue Cross plans.

In a letter from Blue Cross notifying Dr. Singh of the

termination decision on October 16, 1996, he was advised that he

would be afforded a "fair hearing" review of the decision if he

requested one by a certain deadline. Dr. Singh did so, and Blue

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Cross accordingly refrained from acting on the RAC's vote pending

the decision of the Fair Hearing Panel. This panel, consisting of

two independent physicians and one attorney, held hearings on five
days between June and December, 1997. At their conclusion, the

Panel reversed the RAC's recommendation to terminate Dr. Singh, and

Blue Cross did not take any further action against him. Thus, Dr.
Singh's indemnity and HMO contracts were never terminated by Blue

Cross.

Dr. Singh brought this action in federal court against

Blue Cross in 1998 for harm resulting from the peer review process,

alleging defamation, tortious interference with advantageous

business relations, breach of contract and violation of Mass. Gen.

Laws ch. 93A. In addition, he filed suit against Dr. White for
defamation.

Blue Cross and Dr. White moved for summary judgment,

arguing that the HCQIA and the Massachusetts Peer Review Statute
(Mass. Gen. Laws ch. 111, § 203(c)) immunize them from liability

for damages stemming from Blue Cross's peer review process. They

also argued that, even if they were not eligible for such immunity,

Dr. Singh could not prevail on the merits. Granting summary

judgment, the district court agreed with the defendants on their

immunity and merits arguments. We review the grant of summary

judgment de novo.

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 II. Blue Cross's Immunity Under the HCQIA

A. The HCQIA

When Congress passed the HCQIA in 1986, it was responding

to a crisis in the monitoring of health care professionals.
Although state licensing boards had long monitored the conduct and

competence of their own health care workers, Congress found that

"[t]he increasing occurrence of medical malpractice and the need to
improve the quality of medical care have become nationwide problems

that warrant greater efforts than those that can be undertaken by

any individual State." 42 U.S.C. § 11101(1). Finding that
incompetent "physicians find it all to[o] easy to move to different
hospitals or states and continue their practices in these new
locations," Congress mandated the creation of a national database

that recorded incidents of malpractice and that was available for
all health care entities to review when screening potential
employees. H.R.Rep. No. 99-903, at 2, reprinted in 1986

U.S.C.C.A.N. 6384, 6385 (hereinafter "H.R.Rep. No. 99-903").3
Before passage of the HCQIA in 1986, threats of antitrust action
and other lawsuits often deterred health care entities from
conducting effective peer review. In order to encourage the type

of peer review that would expose incompetent physicians, the HCQIA

shields health care entities and individual physicians from

3
This committee report refers to a bill that was slightly
different than the law that was ultimately passed as the HCQIA. We
nevertheless refer to it because the language of the bill that it
addressed was close to that of the HCQIA, and all other circuit
courts addressing the legislative history of the HCQIA have
primarily referred to this report.

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liability for damages for actions performed in the course of

monitoring the competence of health care personnel.4 See Mathews

v. Lancaster Gen. Hosp., 87 F.3d 624, 632 (3d Cir. 1996)
(describing legislative history of the HCQIA); Bryan v. Jane E.

Holmes Reg'l Med. Ctr., 33 F.3d 1318, 1332 (11th Cir. 1994)

(listing Congressional motivations for passing the HCQIA).
The HCQIA mandates that a health care entity's review of

the competence of a physician shall not result in its liability "in

damages under any law of the United States or of any State," if

such a peer review "meets all the standards specified in section

11112(a) of this title." 42 U.S.C. § 11111(a). In order for

immunity to attach to a professional review action, it

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).

42 U.S.C. § 11112(a). The HCQIA standards "will be satisfied if

the reviewers, with the information available to them at the time

of the professional review action, would reasonably have concluded

4
The term "health care entity" includes any "entity
(including a health maintenance organization or group medical
practice) that provides health care services and that follows a
formal peer review process for the purpose of furthering quality
health care." 42 U.S.C. § 11151(4)(A)(ii).

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that their action would restrict incompetent behavior or would

protect patients." H.R. Rep. No. 99-903 at 10, reprinted in 1986

U.S.C.C.A.N. 6384, 6392-93 (discussing the proper test to use in

applying the first HCQIA standard). Adopting "objective

'reasonable belief' standard[s]," the HCQIA advances the

Congressional purpose of permitting a determination of immunity

without extensive inquiry into the state of mind of peer reviewers.

Id. at 12 (stating that "these provisions [are designed to] allow

defendants to file motions to resolve the issue of immunity in as

expeditious a manner as possible").
Our sister circuits have uniformly applied all the sections of

§ 11112(a) as objective standards. See Mathews, 87 F.3d at 635
(collecting cases); Imperial v. Suburban Hosp. Ass'n, Inc., 37

F.3d 1026, 1030 (4th Cir. 1994) ("The standard is an objective one

which looks to the totality of the circumstances."); Smith v.

Ricks, 31 F.3d 1478, 1485 (9th Cir. 1994) ("the 'reasonableness'

requirements of § 11112(a) were intended to create an objective

standard, rather than a subjective standard"); Bryan, 33 F.3d at

1335 ("The 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, 979 F.2d 728, 734 (9th Cir. 1992); but see

id., 979 F.2d at 741 n.3 (Pregerson, J., dissenting) ("Evidence of
motive and intent is relevant to show whether the defendants

possessed a reasonable belief that [an adverse professional review
action] was warranted by the facts known."). We apply these

objective standards here.

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B. Summary Judgment Under the HCQIA

The statute establishes a rebuttable presumption that

immunity attaches to a professional review action: "[a]

professional review action shall be presumed to have met the [four

HCQIA] standards . . . unless the presumption is rebutted by a

preponderance of the evidence." 42 U.S.C. § 11112(a). In

considering the defendants' motions for summary judgment based on

HCQIA immunity, we ask the following: "[m]ight a reasonable jury,

viewing the facts in the best light for [Dr. Singh], conclude that

he has shown, by a preponderance of the evidence, that the
defendants' actions are outside the scope of § 11112(a)?" Austin,

979 F.2d at 734 (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 254 (1986)); see also Bryan, 33 F.3d at 1333 (quoting this

language from Austin). Therefore, Dr. Singh can overcome HCQIA

immunity at the summary judgment stage only if he demonstrates that
a reasonable jury could find that the defendants did not conduct
the relevant peer review actions in accordance with one of the

HCQIA standards.
Dr. Singh suggests that the statutory presumption of
immunity effectively denies him his Seventh Amendment right to a

jury trial. However, Dr. Singh misconstrues the significance of
the statutory presumption in the context of summary judgment. Dr.
Singh's burden is no different than that of the nonmovant who must

demonstrate the existence of a genuine issue as to any material
fact on all of the elements of the claim alleged once a movant for

summary judgment files a properly supported motion. See Anderson,

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477 U.S. at 254 ("The movant has the burden of showing that there

is no genuine issue of fact, but the plaintiff is not thereby

relieved of his own burden of producing in turn evidence that would
support a jury verdict."); see also William W. Schwarzer, Alan

Hirsch, and David J. Barrans, The Analysis and Decision of Summary

Judgment Motions 47 (1991) (describing further the burden on the
nonmoving party once a party moving for summary judgment points out

to the district court that there is an absence of evidence to

support the nonmoving party's case). With the benefit of the

statutory presumption, the nonmovant is relieved of the initial

burden of providing evidentiary support for its contention at

summary judgment that there is no genuine issue of material fact on

its compliance with the HCQIA standards.5 For Dr. Singh, however,
the burden of defeating summary judgment remains similar to the

burden faced by any plaintiff confronted with a properly supported

motion for summary judgment.6 Summary judgment would not be proper

5
Since HCQIA immunity may only be overcome by a preponderance
of the evidence, the statutory presumption in favor of the health
care entity shifts to the plaintiff "not only the burden of
producing evidence but the burden of persuasion as well." See
Jerome A. Hoffman, Thinking About Presumptions: The Presumption of
Agency from Ownership as Study Specimen, 48 Ala. L. Rev. 885, 896-
97 (1997) (examining the "Thayer-Wigmore effect" and the "Morgan
effect" of presumptions). Of course, a defendant moving for
summary judgment on the basis of HCQIA immunity can choose to
submit evidentiary material in support of its motion instead of
relying solely on the evidentiary weight of the statutory
presumption. That is a choice for the litigant.
6
The summary judgment procedure essentially "prescribes the
means of making an issue. The issue made as prescribed, the right
of trial by jury accrues." Fidelity & Deposit Co. of Md. v. United
States, 187 U.S. 315, 320 (1902). The statutory presumption at
issue here simply adds another element to the plaintiff's case, and
hence another issue to be "made as prescribed [before] the right of

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if Dr. Singh raised a genuine issue of fact material to the

determination of whether Blue Cross met one of the HCQIA standards

during its peer review. Therefore, the statute does not
unconstitutionally deny Dr. Singh his right to a jury trial.

Dr. Singh also argues that the district court denied him

his right to a jury trial through improper application of the
summary judgment standard--namely, by resolving against him the

reasonableness issues under the HCQIA that should have been

resolved by a jury. It is true, as our formulation here of the

summary judgment question suggests (asking whether a reasonable

jury could find that a defendant did not meet one of the standards

for HCQIA immunity), that the statutory scheme contemplates a role

for the jury, in an appropriate case, in deciding whether a
defendant is entitled to HCQIA immunity. The weight of authority

from our sister circuits reflects this proposition. See Gabaldoni

v. Washington Cty. Hosp., 250 F.3d 255, 260 (4th Cir. 2001) ("Due
to the presumption of immunity contained in section 11112(a), we

must apply an unconventional standard in determining whether [the
health care entity] was entitled to summary judgment--whether a

reasonable jury, viewing all facts in a light most favorable to

[the plaintiff], could conclude that he had shown, by a

preponderance of the evidence, that [the health care entity's]

actions fell outside the scope of section 11112(a)."); Sugarbaker

v. SSM Health Care, 190 F.3d 905, 912 (8th Cir. 1999); Brader v.

Allegheny Gen. Hosp. 167 F.3d 832, 839 (3d Cir. 1999); Brown v.

trial by jury accrues." Id.

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Presbyterian Healthcare Servs., 101 F.3d 1324, 1334 n.9 (10th Cir.

1992) (determining whether the plaintiff "provided sufficient

evidence to permit a jury to find she has overcome, by a
preponderance of the evidence, any of the four statutory elements

required for immunity under 42 U.S.C. § 11112(a)"); Austin, 979

F.2d at 734; Bryan, 33 F.3d at 1333. This jury involvement is not
limited to disputes over subsidiary issues of fact.7 Rather, a

jury could be asked to decide the ultimate issues of reasonableness

set forth in the immunity statute.

7
Bryan states that "HCQIA immunity is a question of law for
the court to decide" and limits jury involvement to settling
"disputed subsidiary issues of fact." Bryan, 33 F.3d at 1332-33.
However, Bryan's articulation of the summary judgment standard
follows the other circuits in contemplating a role for the jury in
the ultimate determination of HCQIA immunity:

. . . the rebuttable presumption of HCQIA section
11112(a) creates an unusual summary judgment standard
that can best be expressed as follows: "Might a
reasonable jury, viewing the facts in the best light for
[the plaintiff], conclude that he has shown, by a
preponderance of the evidence, that the defendants'
actions are outside the scope of § 11112(a)?"

Id. at 1333 (quoting Austin, 979 F.2d at 734). Moreover, the only
example Bryan gives of a "disputed subsidiary issue[] of fact" is
a HCQIA immunity determination itself: "If there are disputed
subsidiary issues of fact concerning HCQIA immunity, such as
whether the disciplined physician was given adequate notice of the
charges and the appropriate opportunity to be heard, the court may
ask the jury to resolve the subsidiary factual questions by
responding to special interrogatories." Id. (emphasis added)
(citations omitted). This query is almost identical to the third
HCQIA standard. See 42 U.S.C. 11112(a)(3) (denying immunity if
peer review board fails to give physician "adequate notice and
hearing procedures"). Given Bryan's internal inconsistency, and
its contradiction of the other circuits' holding that a jury may in
principle make a HCQIA immunity determination, we decline to adopt
its designation of HCQIA immunity determinations as pure questions
of law off limits to a jury.

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 In this allocation of responsibility between judge and

jury, there is an important difference between qualified immunity

under the HCQIA and qualified immunity under 42 U.S.C. § 1983.8
Qualified immunity determinations under § 1983 are "question[s] of

law, subject to resolution by the judge not the jury," Prokey v.

Watkins, 942 F.2d 67, 73 (1st Cir. 1991),9 while HCQIA immunity
determinations may be resolved by a jury if they cannot be resolved

at the summary judgment stage. This distinction is appropriate

because qualified immunity analysis under § 1983 involves a

8
Section 1983, originally § 1 of the Ku Klux Klan Act of
1871, "creates an action for damages and injunctive relief for the
benefit of citizens and other persons against those persons
responsible for the violation" of "certain rights secured by the
Constitution and laws." 1 Sheldon Nahmod, Civil Rights and Civil
Liberties Litigation § 1:1 (4th ed. 2001) (internal quotation marks
and citations omitted). Courts and commentators have analogized
HCQIA and § 1983 immunity. See, e.g., Fobbs v. Holy Cross Health
Sys. Corp., 789 F. Supp. 1054, 1063-65 (E.D. Cal. 1992)
(analogizing HCQIA immunity and § 1983 immunity); see also Susan L.
Horner, The Health Care Quality Improvement Act of 1986: Its
History, Provisions, Applications and Implications, 16 Am. J.L. &
Med. 455, 467 (1990) (characterizing HCQIA immunity as a "qualified
immunity").
9
Several courts have indicated that if factual disputes
underlie a qualified immunity determination, a judge may issue
"special interrogatories to the jury as to the disputes of fact."
St. Hilaire v. City of Laconia, 71 F.3d 20, 24 n. 1 (collecting
cases). Though we have not explicitly adopted this approach, id.,
we have expressed approval of it:

[T]he Supreme Court has not clearly indicated whether the
judge may act as fact-finder when there is a factual
dispute underlying the qualified immunity defense or
whether this function must be fulfilled by a jury. In
any event, when facts are in dispute, "'we doubt the
Supreme Court intended this dispute to be resolved from
the bench by fiat.'"

Kelley v. LaForce, 288 F.3d 1, 7 (1st Cir. 2002) (quoting St.
Hilaire, 71 F.3d at 24 n.1 (quoting Prokey, 942 F.2d at 72)).

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quintessential legal question: whether the rights at issue are

clearly established. See Anderson v. Creighton, 483 U.S. 635, 638

(1987) (explaining that "whether an official protected by
qualified immunity may be held personally liable for an allegedly

unlawful official action generally turns on the objective legal

reasonableness of the action assessed in light of the legal rules
that were clearly established at the time it was taken" (internal

quotation marks and citations omitted)). There is no comparable

legal question involved in the immunity analysis under the HCQIA.

Moreover, immunity under the HCQIA is immunity from damages only,

whereas qualified immunity under § 1983 is "an immunity from suit

rather than a mere defense to liability [that] is effectively lost

if a case is erroneously permitted to go to trial." Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985). Hence, there is less reason

under the HCQIA to exclude the jury entirely from involvement with

the dispositive determinations.
Also, the Supreme Court has suggested a helpful

functional approach in deciding the proper allocation of functions
between judge and jury:

At least in those instances in which Congress
has not spoken and in which the issue falls
somewhere between a pristine legal standard
and a simple historical fact, the fact/law
distinction at times has turned on a
determination that, as a matter of the sound
administration of justice, one judicial actor
is better positioned than another to decide
the issue in question.

Miller v. Fenton, 474 U.S. 104, 114 (1985). Such a "functional

inquiry involves several factors, including whether the issue falls

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within the common experience of jurors, whether its resolution

involves the kinds of decisions traditionally entrusted to jurors,

and whether a judgment of peers is desirable." William W.
Schwarzer, Alan Hirsch, and David J. Barrans, The Analysis and

Decision of Summary Judgment Motions 18-19 (1991) (reprinted at 139

F.R.D. 441). Although peer review actions are not within the
common experience of jurors, they are not so esoteric that they

cannot be fairly evaluated by jurors, perhaps with the assistance

of expert witnesses. Also, we routinely ask jurors to evaluate the

quality of medical care in medical malpractice cases. As this case

illustrates, the quality of medical care is often at the core of a

peer review dispute under the HCQIA. Therefore, we see no reason

why juries should be excluded entirely from immunity determinations
under the HCQIA.

However, Congress unmistakably recognized the usefulness

of summary judgment proceedings in resolving immunity issues under
the HCQIA prior to trial. Again, the comparison to qualified

immunity under § 1983 is instructive. As already noted, pursuant

to Supreme Court precedents, a state official is immune from suit

under § 1983 when his "conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)

(citations omitted). By "defining the limits of qualified immunity

essentially in objective terms," the Supreme Court has indicated

that this "defense would turn primarily on objective factors," and

would therefore be amenable to resolution at the summary judgment

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stage, when judges could determine whether the rights at issue in

the case were "clearly established" at the time of the alleged

offense. Id. at 819, 820. The Supreme Court has repeatedly
emphasized that the qualified immunity determination should be made

as soon as possible during the course of litigation. See id. at

815-16 (referring to the Court's holding in Butz v. Economou, 438
U.S. 478, 508 (1978), that "insubstantial claims should not proceed

to trial"). Like the Supreme Court in Harlow, Congress indicated

in the legislative history of the HCQIA that its immunity

determinations should also be made expeditiously. See H.R. Rep.

No. 99-903, at 12, reprinted in 1986 U.S.C.C.A.N. 6384, 6394

(stating that "these provisions [are intended to] allow defendants

to file motions to resolve the issue of immunity in as expeditious
a manner as possible," and anticipating that courts would

"determine at an early stage of litigation that the defendant has

met the [section 11112(a)] standards").
In asserting that the district court deprived him of his

right to a jury trial with its summary judgment ruling, Dr. Singh

overlooks the import of Congress's adoption of objective standards

for the HCQIA immunity determination. Given the objective

standards set forth in the statute, reasonableness determinations

under the HCQIA may often become legal determinations appropriate

for resolution by the judge at summary judgment. If there are no

genuine disputes over material historical facts,10 and if the

10
As a monograph on the topic explains, "[a] historical fact
is a thing done, an action performed, or an event or
occurrence. . . . A dispute over historical facts or inferences, if

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evidence of reasonableness within the meaning of the HCQIA is so

one-sided that no reasonable jury could find that the defendant

health care entity failed to meet the HCQIA standards, the entry of
summary judgment does no violence to the plaintiff's right to a

jury trial. With these considerations in mind, we turn to the

summary judgment record.

C. The Professional Review Actions Challenged By Dr. Singh

There are many elements of a peer review, including

investigation, deliberation, recommended actions and final

decisions. The HCQIA addresses professional review actions. A

professional review action is defined in the HCQIA as:

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 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, or
membership in a professional society, of the
physician. Such term includes a formal decision
of a professional review body not to take an
action or make a recommendation described in the
previous sentence and also includes professional
review activities relating to a professional
review action.

42 U.S.C. § 11151(9). Professional review activities are generally

precursors to professional review actions. Professional review
activities include a health care entity's efforts

genuine and material within the meaning of [Federal] Rule [of Civil
Procedure] 56, precludes summary judgment." Schwarzer et al.,
supra, at 14.

-19-
 (A) to determine whether the physician may
have clinical privileges with respect to, or
membership in, the entity,
(B) to determine the scope or conditions of
such privileges or membership, or
(C) to change or modify such privileges or
membership.

42 U.S.C. § 11151(10). When a court considers whether a health

care entity is immune from damages for a given professional review
action, it considers whether that action, considered as a whole,

and including all the professional review activities relating to

it, meets the standards set forth in § 11112(a).

The district court determined that Blue Cross took three

professional review actions with respect to Dr. Singh. As a result

of the first audit, Blue Cross (1) decided not to permit Dr. Singh

to become a provider for the Baystate Line, and (2) decided to
"freeze" his HMO Blue patient panel. As a result of the second

audit, Blue Cross (3) terminated Dr. Singh as a Blue Cross

provider.11

11
In his opposition to Blue Cross's motion for summary
judgment, Dr. Singh contended that Blue Cross took "professional
review actions" in addition to those listed above, including (1)
entering the 1994 Audit Agreement; (2) deciding to conduct a second
audit; (3) notifying Dr. Singh's Bay State patients that he was
no longer a Bay State provider; and (4) sending a letter dated June
13, 1995, notifying Dr. Singh that he would be terminated as a Blue
Cross provider. The district court concluded that these events are
all more properly considered professional review activities, and
Dr. Singh does not challenge this determination on appeal.

-20-
D. Applying the HCQIA Standards

Since Dr. Singh argues that Blue Cross failed to meet all

of the HCQIA standards in each of the two audits it conducted, we

examine each in turn.

1. The First Audit

Dr. Singh argues that the RAC's refusal to admit him to

the Baystate Line and its recommendation that his Blue Cross
patient panel be frozen were not in accordance with HCQIA

standards.12 With these contentions in mind, we review the record

to determine whether a reasonable jury could determine that Dr.
Singh overcame the statutory presumption that Blue Cross performed
these professional review actions in accordance with the strictures
of § 11112(a):

(1) in the reasonable belief that the action[s were]
in the furtherance of quality health care,
(2) after a reasonable effort to obtain the facts of
the matter,

12
According to an Audit Agreement signed by both parties on
October 10, 1994, Blue Cross agreed to "consider admitting [Dr.
Singh] into its Bay State product if the results of the [first]
audit [were] positive." In return for this opportunity, Dr. Singh
released Blue Cross and its employees from liability for claims
arising out of the audit, except for "any claim Dr. Singh may have
regarding the conduct of the audit itself or any willful failure to
comply with this Agreement." The district court did not consider
whether Dr. Singh had waived his right to sue with respect to the
decision to freeze his patient panel, but did hold that the audit
agreement prevented Dr. Singh from suing Blue Cross for its denial
of his admission to the Baystate line. Despite this holding, the
district court went on to consider whether Blue Cross earned HCQIA
immunity with respect to both of the professional review actions
arising out of the first audit. Given the ambiguity of the audit
agreement and the failure of both parties to address this waiver
issue, we think it advisable to follow this course as well.

-21-
 (3) after adequate notice and hearing procedures
[were] 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[s were]
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). We follow the district court's thoughtful

opinion and consider these two professional review actions in

tandem because they both resulted from the first audit of Dr.

Singh, conducted by Dr. Clayton.

a. In furtherance of quality health care and warranted by facts
known13

The RAC decided to freeze Dr. Singh's patient panel and

to deny him admission to the Baystate product line because of Dr.

Clayton's audit. Dr. Singh claims that Blue Cross could not have

reasonably believed that these actions would further quality health

care and were warranted by the facts known.

First, Dr. Singh argues that, in some other cases where

a health care entity was granted immunity, the health care entity

only disciplined a physician in response to demonstrated harm to
patients, or took less drastic measures than those recommended for

Dr. Singh before opting to discipline the physician. See Gabaldoni

v. Wash. Cty. Hosp. Ass'n, 250 F.3d 255, 261 (4th Cir. 2001)

(granting immunity where plaintiff physician had been subject to

13
Following the lead of our sister circuits, we evaluate
together standards (1) and (4) of HCQIA immunity. As their wording
suggests, they are closely related.

-22-
multiple lawsuits); Egan v. Athol Mem'l Hosp., 971 F. Supp. 37, 41,

44 (D. Mass. 1997) (granting immunity where defendants repeatedly

received complaints from staff and plaintiff was required to
complete courses); Mathews, 87 F.3d at 628, 629 (immunity granted

where plaintiff physician injured patient with high speed drill).

Dr. Singh essentially argues that the RAC could only have
reasonably believed that professional review actions adverse to him

would further quality health care if it was responding to

documented patient injuries or if it prefaced its decisions to

freeze his patient panel and deny him entry to the Baystate plan

with other, less severe "reeducation" measures.

Neither position comports with the purpose of the HCQIA,

or precedent interpreting it. The HCQIA was designed to prevent
patient harm, not to assure an adequate response after it occurred.

See 42 U.S.C. § 11101(a) (describing Congressional finding that

peer review was necessary in order to keep "incompetent physicians"
from harming patients). Therefore, Blue Cross was under no

obligation to wait until a patient was actually harmed by Dr. Singh
before it took preventive action limiting his access to Blue Cross

customers and further investigating his practice. Blue Cross's

failure to "reeducate" Dr. Singh also does not demonstrate that the

RAC could not have "reasonably . . . concluded that [its] actions

would restrict incompetent behavior or would protect patients."

H.R. Rep. No. 99-903 at 10, reprinted in 1986 U.S.C.C.A.N. 6384,

6392-93 (discussing the proper test to use in applying the first

-23-
HCQIA standard). The RAC suspected that Singh could harm patients,

and therefore restricted his access to them. Dr. Singh cites no

authority for the proposition that Blue Cross was obliged to take
the response least disruptive to Dr. Singh upon receiving evidence

that his practices did not comply with the relevant standards of

care.
Dr. Singh also argues that Blue Cross could not have

reasonably believed that its professional review actions would

further quality health care because Dr. Clayton's audit was not

entirely critical. Dr. Clayton observed in his audit report that

Singh "appear[ed] to make a sincere effort to try to deal

with . . . multiple problems which are at the most challenging and

at the very least many times difficult to attain satisfactory
conclusions." However, Dr. Clayton also stated that Singh's

"documented treatment showed evidence of care somewhat below

recognized standards of care." Dr. Clayton's praise for Dr.
Singh's apparent good faith effort to help his patients does not so

vitiate the negative aspects of his audit as to discredit Blue

Cross's decision to base its adverse professional review actions on

the Clayton audit.

Finally, Dr. Singh claims that Blue Cross took its

professional review actions "not because of quality of care issues,

but because his practice was not cost efficient." He also notes

that the first audit "in part focused on over utilization of office

visits and lab tests." Noting that almost all other HCQIA cases

-24-
involved hospitals, "providers of health care," Dr. Singh argues

that "it could reasonably be inferred that Blue Cross's primary

concern was not to further quality health care, but to provide

health care insurance to its members at a profit."

Dr. Singh offers a false dichotomy between furthering

quality health care and overutilization of medical procedures and

tests. If patients are being subjected to unnecessary procedures

and tests, the consequences are both economic and medical. Dr.

Singh offers no evidence that Blue Cross's RAC was acting only as

a cost-cutting body when it reviewed his performance. The Clayton
audit focused on health care concerns. Like the plaintiff

physician who failed to overcome the statutory presumption of
immunity in Mathews, Dr. Singh

has produced no evidence that [economic]
considerations actually entered into the
[RAC]'s decisionmaking process. . . . Rather,
Dr. [Singh] appears to base his argument
solely on his allegation that the
defendants . . . stood to gain by eliminating
him . . . .

Mathews, 87 F.3d at 636. Although Dr. Clayton's audit did refer to
a pattern of overutilization of medical resources in Dr. Singh's
practices--including excessive and inappropriate lab tests, too-

frequent office visits, and overly long treatment regimens of
antibiotics--all of these criticisms are inextricably intertwined
with medical concerns. No reasonable jury could conclude that the

RAC's actions were not taken in the reasonable belief that its

-25-
actions were warranted by the facts known from the Clayton audit to

further quality health care.

b. Reasonable Investigation

For HCQIA immunity to attach to a professional review

action, the decision must be taken "after a reasonable effort to

obtain the facts of the matter." 42 U.S.C. § 11112(a)(2). Dr.

Singh's only challenge to the statutory presumption that Blue Cross
acted in accordance with this standard while conducting the first

audit is his assertion that "the RAC focused on all of the patient

files containing narcotic prescriptions even though Clayton's
three-page report barely mentioned Singh's narcotic prescription
practices." Even if we assume arguendo that the RAC did focus on
patient files containing narcotic prescriptions, and was wrong to

do so, those mistakes relate to the RAC's interpretation of the
facts--not its "effort to obtain the facts." Id. Blue Cross hired

an independent auditor, Dr. Clayton, to conduct the first audit,

which was based on twenty-five randomly selected patient files.
The RAC carefully reviewed Clayton's report. Given these steps, no
reasonable jury could find that Blue Cross failed to take its
professional review action "after a reasonable effort to obtain the

facts of the matter." Id.

c. Adequate Notice and Procedures

A professional review action must be taken "after

adequate notice and hearing procedures are afforded to the
physician involved or after such other procedures as are fair to

-26-
the physician under the circumstances." 42 U.S.C. § 11112(a)(3).

The controlling question is whether the plaintiff "has shown by a

preponderance of the evidence, that the defendant[] did not provide
him with fair and adequate process under the circumstances."

Islami v. Covenant Med. Ctr. Inc., 822 F. Supp. 1361, 1377 (N.D.

Iowa 1992).
Dr. Singh alleges that the first audit was not fair

because "Blue Cross did not select a mutually agreeable peer review

consultant as required under the Audit Agreement." However, the

record demonstrates that Dr. Singh was largely responsible for this

state of affairs. The parties initially could not agree on a peer

reviewer, with Dr. Singh refusing to accept any of the physicians

nominated by Blue Cross. Although the physician nominated by Dr.
Singh (Dr. Criss) worked at the same hospital as Dr. Singh, Blue

Cross agreed to permit him to conduct the review. However, when

that physician received the relevant paperwork, he decided not to
conduct the review. After Dr. Singh failed to respond to Blue

Cross's request that he nominate another physician, Blue Cross

appointed Dr. Clayton to perform the review. Therefore, Dr. Singh

was at least as responsible for the "unfair" appointment of Dr.

Clayton as was Blue Cross. Dr. Singh cannot claim that Blue

Cross's failure to appoint a "mutually agreeable" peer reviewer

made the first audit unfair when his failure to cooperate with Blue

Cross led to this result.

-27-
 Dr. Singh also claims that Blue Cross should have

permitted him to discuss Dr. Clayton's audit with Dr. Clayton

before the RAC voted to deny Singh participation in the Baystate
product line and to freeze Dr. Singh's patient panel. However, the

HCQIA procedural standard does not require peer review bodies to

guarantee the "accused" such a procedural safeguard. "[N]othing in
the Act requires that a physician be permitted to participate in

the review of his care." Sklaroff v. Allegheny Health Educ. Found,

No. CIV. A. 95-4758, 1996 WL 383137 at *8 (E.D. Pa. July 8, 1996);

see also Smith, 31 F.3d at 1487 (stating that the HCQIA does not

require "peer review proceedings to look like regular trials in a

court of law"). Blue Cross's failure to permit Dr. Singh to

discuss the first audit with Dr. Clayton, and its unilateral
selection of Dr. Clayton as the peer reviewer after Singh's failure

to assist in the selection of a "mutually agreeable" peer reviewer,

did not so compromise the first audit as to permit a reasonable
jury to find that Dr. Singh had overcome the statutory presumption

that Blue Cross afforded adequate notice and fair procedures.

2. The Second Audit

Dr. Singh argues that the RAC's recommendation that Blue

Cross remove him from its panel of providers was unreasonable and
based on a shoddy investigation. We again review the record to
determine whether Dr. Singh has demonstrated that a reasonable jury

could find that he overcame the statutory presumption that Blue

-28-
Cross performed this professional review action in accordance with

the strictures of § 11112(a).

a. In furtherance of quality health care and warranted by facts
known

We first consider whether Dr. Singh has rebutted the

presumption that the RAC recommended his termination "in the

reasonable belief that the action was in the furtherance of quality

health care" and "in the reasonable belief that the action was

warranted by the facts known." 42 U.S.C. § 11112(a)(1) and (4).

To overcome the presumption, Dr. Singh must demonstrate that a

reasonable jury could find that Blue Cross could not have
"concluded that [its] action would restrict incompetent behavior or
would protect patients." Egan, 971 F. Supp. at 42 (internal

quotation marks omitted); accord Bryan, 33 F.3d at 1334-35. As
explained herein, he fails to meet this burden.
Dr. Singh argues that the Fair Hearing Panel's ultimate

decision to reverse the RAC's recommendation of his termination
would permit a reasonable jury to find that the RAC could not have
terminated him with a reasonable belief that this action would

further quality health care. We disagree. The reversal of a peer

review committee's recommendation of an adverse professional review
action by a higher level peer review panel does not indicate that

the initial recommendation was made without a reasonable belief
that the recommendation would further quality health care. Austin,

979 F.2d at 735 (granting immunity even where a Judicial Review

Committee reversed a Medical Executive Committee's recommendation

-29-
of adverse professional review action). The Fair Hearing Panel had

more information before it when it reviewed Dr. Singh's case than

the RAC did. The appropriate "inquiry is whether the decision was
reasonable in light of the facts known at the time the decision was

made, not in light of facts later discovered." Sklaroff, 1996 WL

383137 at *9. Although the Fair Hearing Panel's ultimate
disposition of the case suggests that the RAC erred, it does not

resolve the question whether the RAC had reasonable grounds to

believe that its decision would further quality health care. See

Imperial, 37 F.3d at 1030 ("[T]he Act does not require that the

professional review result in an actual improvement of the quality

of health care. Rather, the defendants' action is immune if the

process was undertaken in the reasonable belief that quality health
care was being furthered.").

When the RAC reviewed Dr. Singh's case, the primary

source of information before it was Dr. White's audit, which
extensively criticized Dr. Singh. Dr. White reported substandard

care in thirty-three of the thirty-seven files he reviewed. As in

Gabaldoni, "the record is replete with objective evidence of [Dr.

Singh's] deviations from . . . the applicable standard of care;

[Blue Cross] reasonably relied on . . . such evidence in support of

its" professional review action. 250 F.3d at 261. Although Dr.

Singh alleges several procedural irregularities in Dr. White's

audit, he does not directly challenge Dr. White's conclusions in

-30-
any particular case.14 Moreover, Dr. Singh offers no reason why

the RAC should have doubted the accuracy of Dr. White's assessment

in any particular case.
Dr. White's report "questioned Dr. Singh's care of

patients with chronic back and neck pain . . . , patients with

emotional disorders . . . , and asthma patients." Singh v. Blue

Cross & Blue Shield of Mass, Inc., 182 F. Supp. 2d 164, 174 (D.

Mass. 2001). Dr. White concluded that "[t]here is a general

pattern of inadequate or delayed evaluation and treatment, and

failure to refer. Competent [expert] care is rarely seen." Id.

(citation omitted). Furthermore, the physician members of the RAC

did not just take Dr. White's report on faith--they also reviewed

several of the patient records upon which it was based prior to the
vote. Thus, Dr. Singh has not demonstrated that a reasonable jury

could find that he rebutted the statutory presumption that the RAC

took its professional review action in the reasonable belief that

14
We recognize that the sample of thirty-seven files given to
Dr. White included four files of patients not treated by Dr. Singh,
and all four of these files were among the thirty-three cases
deemed by White as evidencing "substandard" treatment. Even if we
eliminate these files, Dr. White's audit still would have concluded
that twenty-six of the thirty-three remaining cases indicated
substandard care. Dr. Singh contends that the inclusion of these
cases indicates either that Blue Cross set out to terminate his
contract (and merely used the bad audit results as a pretext for
doing so) or performed the audit so poorly that Blue Cross could
not reasonably believe that acting in accordance with its results
would further quality health care. We consider these contentions
in the next section of the opinion (addressing the adequacy of the
procedures employed by Blue Cross).

-31-
its action was in furtherance of quality health care and was

warranted by the facts known. 42 U.S.C. § 11112(a)(4).15

b. Reasonable Investigation

For HCQIA immunity to attach to a professional review

action, the decision must be taken "after a reasonable effort to

obtain the facts of the matter." 42 U.S.C. § 11112(a)(2). Dr.

Singh claims that Blue Cross used "an unreasonably narrow procedure
in obtaining the facts" it relied upon in deciding his case. He

asserts that this case is analogous to Brown, where the court

determined that a reasonable jury could have found that the
hospital's peer review action was not taken "after a reasonable
effort to obtain the facts of the matter" because a witness
testified that a peer review panel's reliance on "only two charts"

prior to revoking a doctor's privileges "was unreasonably narrow
and did not provide a reasonable basis for concluding Dr. Brown
posed a threat to patient safety." 101 F.3d at 1334. Dr. Singh

argues that his review was as "unreasonably narrow" as Dr. Brown's,
at least "with respect to the type of cases used," since, "[o]f the
total of thirty-seven patient files submitted to Dr. White, 21
(57%) contained narcotic prescriptions."

Dr. Singh misconstrues Brown. There, the court

criticized the review as "narrow" because of the small sample of

15
Dr. Singh renews his economic motivation argument in
challenging the second audit. We reject it for the same reasons we
rejected it in discussing the challenge to the first audit.

-32-
cases it contained, not because the sample focused on one

particular type of case. Courts have found that peer reviewers

made a "reasonable effort to obtain the facts of the matter" even
when they concentrated on areas of special concern. See Smith,

31 F.3d at 1483 (review committees focused on problem cases of the

plaintiff doctor); Bryan, 33 F.3d at 1326-28 (review panels focused
on incidents in which mercurial doctor abused hospital staff).

Health care entities are entitled to focus on certain types of

cases when these types of cases have caused concern. Moreover, Dr.

Singh concedes that sixteen of the patient files submitted to Dr.

White did not contain narcotic prescriptions. Thus, Dr. White and

the RAC reviewed at least eight times as many randomly selected

cases as Presbyterian Hospital's peer reviewer did in Brown.16

In a further challenge to Dr. White's audit, Dr. Singh

asserts that "[t]he RAC: (1) erroneously reviewed the files of at

least two (2) patients who were not treated by Dr. Singh; (2)
selected a nonrandom sample of patient files showing exaggerated

narcotic prescriptions practices." However, Dr. Singh does not

explain why the inclusion of these two files in Dr. White's review

16
Health care entities using both more files and fewer files
than Blue Cross in their peer review actions have fulfilled the
HCQIA standards for adequate fact-finding. Compare Mathews, 87
F.3d at 629 (discussing peer review action taken after a review of
208 cases revealed twenty-seven that "evidenced a substandard level
of care") with Austin, 979 F.2d at 731 (identifying deficiencies in
twenty-six of thirty cases reviewed), Egan, 971 F. Supp. at 40
(noting that an independent medical reviewer reviewed six cases,
four of which "indicated significant inadequacies in . . . care.")
and Fobbs, 789 F. Supp at 1066-67 (granting immunity to hospital
that only reviewed four cases).

-33-
invalidated the conclusions drawn from the review of the numerous

files that were indisputably his. As we have discussed above, Blue

Cross was entitled to review a "nonrandom" sample of Dr. Singh's
files. See Smith, 31 F.3d at 1483; Bryan, 33 F.3d at 1326-28.

Admittedly, Blue Cross should have told the peer reviewer, Dr.

White, that the sample was weighted toward cases involving
narcotics prescriptions. However, this oversight was not material

to Dr. White's findings.

Dr. White did not simply give a global evaluation of the

cases he reviewed. Rather, he analyzed each case individually and

concluded, in nearly all cases, that Dr. Singh provided substandard

care. For example, Dr. White observed in one case that

[c]hronic back pain is treated with narcotic
analgesics (Darvon and Percocet) in addition
to Lodine. Most internists would have tried
to avoid the narcotic analgesics, which were
prescribed in significant quantities over the
year.

In a similar case, Dr. White observed:

[L]ow back pain is treated with narcotic
analgesics (Percocet) in addition to Motrin.
Most internists would have tried to limit
analgesic therapy to Motrin and other
[nonprescription drugs].

Dr. White's twenty pages of notes on individual patients and five-

page letter explaining his conclusions criticized Dr. Singh for far

more than his narcotics prescription practices; they touched on

many other areas of concern. Dr. White criticized Dr. Singh's care

of patients with chronic back and neck pain as "significantly 'sub-

standard,'" stated that Dr. Singh "failed to meet the minimal

-34-
standards of the medical community" in his treatment of patients

with emotional disorders, and "failed to deliver quality care" to

asthma patients. Dr. White concluded that "[t]here is a general
pattern of inadequate or delayed evaluation and treatment, and

failure to refer. Competent expert care is rarely seen."

"The relevant inquiry under § 11112(a)(2) is whether the
totality of the process leading up to the [RAC]'s 'professional

review action' [recommending that Blue Cross terminate Dr. Singh's

participation] evidenced a reasonable effort to obtain the facts of

the matter." Mathews, 87 F.3d at 637. Prior to the termination

vote, Blue Cross had conducted two audits of Dr. Singh's practice

(by two independent physicians), and the five physician members of

the RAC had reviewed the audit reports and many underlying patient
records. Although Blue Cross made some mistakes in forwarding the

files to Dr. White for his review, the "[p]laintiff is entitled to

a reasonable investigation under the Act, not a perfect
investigation." Egan, 971 F. Supp. at 43 (citing 42 U.S.C. §

11112(a)(2)) (internal quotation marks omitted). Given the two

audits and the level of attention Dr. White gave to each chart he

reviewed, no reasonable jury could find that Dr. Singh overcame the

statutory presumption that Blue Cross engaged in a reasonable

effort to obtain relevant facts.

c. Adequate Notice and Procedures

Dr. Singh only presents one argument that the second

audit did not afford him fair process, faulting Blue Cross for

-35-
failing to give him an opportunity to discuss with Dr. White the

results of the second audit. However, again, "nothing in the

[HCQIA] requires that a physician be permitted to participate in
the review of his care." Sklaroff, 1996 WL 383137 at *8; see also

Smith, 31 F.3d at 1487 (explaining that the HCQIA does not require

"peer review proceedings to look like regular trials in a court of
law"). Moreover, Blue Cross gave Dr. Singh the opportunity to

challenge the White audit at the Fair Hearing Panel. Dr. Singh

successfully challenged it there. Under these circumstances, no

reasonable jury could find that Dr. Singh overcame the statutory

presumption that Blue Cross provided him with procedures that were

fair.

E. The Immunity

We have "examine[d] the evidence and the inferences

reasonably to be drawn therefrom in the light most favorable to the
nonmovant." Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir. 1987)

(citations omitted). Summary judgment is warranted here because

the evidence "is so one-sided that the movant is plainly entitled
to judgment, for reasonable minds could not differ as to the
outcome." Gibson v. City of Cranston, 37 F.3d 731, 735 (1st Cir.

1994) (describing standard for granting judgment as a matter of

law, which also applies at the summary judgment stage). Given the

overwhelming evidence of the care taken in the peer review process

and the absence of any material dispute over historical facts, no

reasonable jury could reject Blue Cross's assertion that its

-36-
professional review actions were taken in the reasonable belief

that they would further quality health care, were warranted by the

facts known, were based on adequate factfinding, and afforded Dr.
Singh fair notice and procedure. Blue Cross is thus immune from

liability for damages for the professional review actions which

resulted from the first and second audits. Dr. White is also
immune from liability because HCQIA immunity extends to "any person

who participates with or assists [a peer review] body with respect

to" actions arising out of a peer review.

42 U.S.C. 11111(a)(1)(D).

III. The Scope of Immunity

HCQIA immunity only covers liability for damages. It
does not shield covered defendants from suit and other forms of
relief. See 42 U.S.C. § 11111(a)(1) (stating that health care

entities "shall not be liable in damages" for peer review actions
under certain conditions); Manion v. Evans, 986 F.2d 1036, 1042

(6th Cir. 1993) (concluding, after an exhaustive review of the

legislative history, that "we are unable to find in HCQIA's grant
of statutory protection the kind of explicit guarantee that trial

will not occur that is demanded by Supreme Court case law"

(emphasis in original) (citation omitted)). Therefore, we must
determine whether Dr. Singh is seeking relief other than damages in
this suit. If so, we must review de novo the district court's

summary judgment determination that Dr. Singh could not prevail on
the merits of any of his claims.

-37-
 We turn to Dr. Singh's complaint to determine the nature

of the relief sought in this lawsuit. At the conclusion of each of

the first six counts of the complaint, Dr. Singh demands "judgment
against the defendant, [Blue Cross], in an amount deemed just by

the court, plus actual attorney's fees, interest and costs." (In

Count VI, Dr. Singh asks that any judgment resulting from
violations of Mass. Gen. Laws ch. 93A be tripled.) In the last

count, entitled "Equitable Remedy: Dr. Singh v. [Blue Cross]," Dr.

Singh requests the following:

a. that [Blue Cross] reinstate Dr. Singh
as a primary care provider and
subscriber, without delay or subject to
contingencies;
b. that [Blue Cross] pay Dr. Singh
reasonable attorney's fees, interest and
costs;
c. that [Blue Cross] pay Dr. Singh costs
and attorney's fees associated with the
appeal of the decision to terminate; and
d. Such other relief as this court deems
just.

Dr. Singh has already achieved his first aim; the Fair Hearing

Panel reversed the RAC's provisional termination of Dr. Singh and

reinstated him as a primary care provider and subscriber. Dr.
Singh has not mentioned any "delay or contingencies" in this

reinstatement that a court could now remedy. He therefore cannot

be suing for this form of equitable relief. However, Dr. Singh's

demand for "such other relief as this court deems just" is a

familiar catchall that signals to the court that other forms of

equitable relief may be appropriate. With its close involvement in

the case, the district court went beyond the immunity analysis to

-38-
consider the merits of Dr. Singh's claims, thereby reflecting its

view that relief other than damages might still be at issue in this

case. Taking our cue from the district court, we go on to consider
the merits of Dr. Singh's claims in order to determine whether he

can seek any relief other than damages in further proceedings

before the trial court.

IV. Summary Judgment on the Merits

The district court concluded that Dr. Singh could not

succeed on the merits of his claims. We agree and rely heavily on

the district court's astute analysis.

A. Contract Claims

Dr. Singh alleged in his complaint that Blue Cross
violated the HMO Blue Physician Agreement, the implied covenant of

good faith and fair dealing, and the Audit Agreement. Although he
renews the good faith argument on appeal, he treats it so
perfunctorily that we deem it waived.17 See United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (explaining that "issues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived"). On appeal, Dr.

17
Dr. Singh alleged that Blue Cross violated an implied
covenant of good faith and fair dealing by conducting its audits in
an unreasonable manner. The district court concluded that "there
is no evidence in the record of bad faith on the part of Blue
Cross, and therefore Singh's implied covenant of good faith and
fair dealing contention fails." Singh, 182 F. Supp. 2d at 177.
On appeal, Dr. Singh neither directly argues that Blue Cross acted
in bad faith nor challenges the district court's legal conclusion
that he must do so.

-39-
Singh only develops his claim that Blue Cross violated the Audit

Agreement.18

The complaints are familiar. Dr. Singh states that the

first audit violated the Agreement because "Blue Cross did not

select a mutually agreeable peer review consultant as required

under the Audit Agreement," and it took a professional review

action before Dr. Singh was able to talk to Dr. Clayton about the

audit. However, as explained earlier, the record demonstrates that

Singh was largely responsible for this state of affairs. The

parties initially could not agree on a peer reviewer, with Dr.
Singh refusing to accept any of the physicians nominated by Blue

Cross. Although the physician nominated by Dr. Singh (Dr. Criss)

worked at the same hospital as Dr. Singh, Blue Cross agreed to
permit him to conduct the review. However, when Dr. Criss received

the relevant paperwork, he decided not to conduct the review.

After Dr. Singh failed to respond to Blue Cross's request that he
nominate another physician, Blue Cross appointed Dr. Clayton to

18
Dr. Singh also claims that Blue Cross violated his rights
by failing to satisfy the requirements of the HCQIA. However,
the HCQIA does not create a private cause of action. See Wayne v.
Genesis Med. Ctr., 140 F.3d 1145, 1148 (8th Cir. 1998) (joining
"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" HCQIA standards) (citing
Hancock v. Blue Cross-Blue Shield of Kan., Inc., 21 F.3d 373, 374-
75 (10th Cir. 1994) (holding that the HCQIA does not explicitly or
implicitly create a private cause of action for physicians
subjected to peer review; Congress did not intend to create a cause
of action for the benefit of physicians), and Bok v. Mut.
Assurance, Inc., 119 F.3d 927, 928-29 (11th Cir. 1997) (per curiam)
(agreeing with Hancock that the HCQIA does not create a cause of
action for physicians)).

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perform the review. Therefore, Dr. Singh was at least as

responsible for the "unfair" appointment of Dr. Clayton as was Blue

Cross. Dr. Singh cannot claim that Blue Cross's failure to appoint
a "mutually agreeable" peer reviewer made the first audit unfair

when his failure to cooperate with Blue Cross led to this result.

Moreover, "[b]ecause Singh himself was not reliable in meeting the
deadlines imposed by the Audit Agreement," he cannot fault Blue

Cross for expediting a process which he had done much to delay.

Singh, 182 F. Supp. 2d at 177.

Dr. Singh also claims that some features of Blue Cross's
second audit violated the Audit Agreement. However, the Audit

Agreement covered only the first audit. The Agreement states that

it was made by Blue Cross "on behalf of its Bay State Health Care
line of business," and addresses an audit to determine whether Blue

Cross should "admit[] [Dr. Singh] into its Bay State product." The

Audit Agreement applied to all inquiries to determine whether Dr.
Singh should be admitted to the Bay State line. However, by the

time the second audit occurred, those inquiries were over: the RAC

had voted not to admit Dr. Singh to the Bay State line, and the Bay

State line itself had expired. Nothing in the Audit Agreement

restricts Blue Cross's right to conduct a peer review of Dr. Singh
with respect to the indemnity or the HMO Blue Products, or places
conditions on such an audit. Singh cannot argue that Blue Cross's
second audit violated the Audit Agreement because that contract by

its own terms did not apply.

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B. 93A Claims

Chapter 93A provides a cause of action to

[a]ny person who engages in the conduct of any
trade or commerce and who suffers any loss of
money or property, real or personal, as a result
of the use or employment by another person who
engages in any trade or commerce of . . . an
unfair or deceptive act or practice . . . .

Mass. Gen. Laws ch. 93A, § 11; see also id., § 2 (establishing

that "unfair or deceptive acts or practices in the conduct of any

trade or commerce" are unlawful). Dr. Singh argues that Blue Cross

violated Mass. Gen. L. ch. 93A by 1) failing to meet the HCQIA
standards, 2) violating the Audit Agreement, and 3) violating the

implied covenant of good faith and fair dealing.

We have already determined that no reasonable jury could
determine that Blue Cross failed to meet the HCQIA standards. We

have also addressed above, as contractual claims, Dr. Singh's

arguments that Blue Cross violated the Audit Agreement. Assuming
arguendo that Blue Cross's actions may technically have violated a

contract that Dr. Singh had already flouted, they by no means reach

"'a level of rascality that would raise an eyebrow of someone

inured to the rough and tumble of the world of commerce.'" Quaker

State Oil Ref. Corp. v. Garrity Oil Co., Inc., 884 F.2d 1510, 1513

(1st Cir. 1989) (quoting Levings v. Forbes & Wallace, Inc., 396

N.E.2d 149, 153 (Mass. 1979)). Chapter 93A only proscribes that
level of improbity, and we endorse the district court's holding

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that "Singh has shown no conduct by Blue Cross that a reasonable

factfinder could find meets this demanding standard." Singh, 182

F. Supp. 2d at 180.

C. Defamation Claim Against Dr. White

Although Dr. Singh sued both Blue Cross and Dr. White for

defamation, he only appeals the district court's entry of summary
judgment on the defamation claim against Dr. White. Dr. Singh

claims that the following elements of Dr. White's report to the RAC

were defamatory:

a. "[Singh's prescription of] large
numbers of narcotic analgesics . . .
raises serious questions about this
practitioner. It may need official
review;"
b. "narcotic analgesics are
liberally prescribed . . . raise[s]
serious questions about the veracity
of this practitioner . . . ;"
c. "This practitioner seems to have
a low threshold for prescribing
narcotic analgesics;" and,
d. "? Public Health Menace."

Under Massachusetts law, "[a] defamatory communication is protected
by a conditional common law privilege provided the publisher and

recipient share some legitimate mutual interest 'reasonably

calculated' to be served by the communication." Catrone v.

Thoroughbred Racing Ass'ns of N. Am., Inc., 929 F.2d 881, 887 (1st

Cir. 1991) (internal quotation marks omitted). Here, Dr. White and

Blue Cross shared a "legitimate mutual interest" in peer review.

Accordingly, the district court found correctly that these

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statements are protected by the conditional common law privilege.

Singh, 182 F. Supp. 2d at 179 (holding that Dr. White's "statements

in the audit report are protected by the common law privilege, and
Singh has presented insufficient evidence to surmount the

privilege").

Dr. Singh argues that malicious intent abuses the

conditional common law privilege. "On motion for summary judgment,

the plaintiff bears the burden of establishing abuse of the

conditional privilege by clear and convincing evidence." Catrone,

929 F.2d at 889 (internal quotation marks and citations omitted).
As evidence of such malice, Dr. Singh offers the "unreasonable

methods used to review Singh's practice." We have already decided

in our discussions of immunity that no reasonable jury could find
that the methods used to review Dr. Singh's practice were

unreasonable. We see no reason to change our minds now.

D. Tortious Interference with Business Advantage

The elements of tortious interference with business
advantage are:

(1) a business relationship or contemplated
contract of economic benefit;
(2) the defendant's knowledge of such
relationship;
(3) the defendant's interference with the
relationship through improper motive or means;
and,
(4) the plaintiff's loss of advantage as a
direct result of the defendant's conduct.

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Brown v. Armstrong, 957 F. Supp. 1293, 1304-05 (D. Mass. 1997),

aff'd, 129 F.3d 1252 (1st Cir. 1997) (table opinion).

Dr. Singh argues that eight pages of his deposition

testimony demonstrated that he "suffered a substantial loss of his
patient base" because of Blue Cross's peer review actions. This

deposition testimony begins with Dr. Singh's incorrect assertion

that "I know for sure my panel was frozen." The RAC only

recommended that Dr. Singh's panel be frozen; it never actually
took this step. Dr. Singh then asserts that his name was not on a

Blue Cross directory, that his patients (and prospective patients)
noticed this, that Blue Cross's investigation of him "became public
knowledge," and that patients started leaving (or failing to sign
up for) his practice. Yet Dr. Singh does not name a single member
of the public to whom the investigation was disclosed. He
repeatedly evaded direct questions on whether anyone actually told
him that Blue Cross disclosed the investigation to them. Assuming
arguendo that the investigation actually was disclosed to

individuals outside of Blue Cross, Dr. Singh does not even estimate
how many patients actually left or avoided his practice on account
of it. We cannot improve on the district court's evaluation of the

evidence:

Singh may not speculate about future business
relationships when alleging this tort;
instead, only a "probable future business
relationship anticipating a reasonable
expectancy of financial benefit" suffices.
Because Singh has presented no evidence of a
specific business relationship that was

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 interfered with by Blue Cross, summary
judgment is granted for Blue Cross.

Singh, 182 F. Supp. 2d at 178 (citation omitted) (quoting Brown,
957 F. Supp. at 1305). The grant of summary judgment was correct.

V. Conclusion
Blue Cross's audits undoubtedly cost Dr. Singh money,
time, and distress. He understandably has strong feelings about
his experience. However, no reasonable jury could find that Blue
Cross failed to meet the HCQIA standards that entitled it and Dr.
White to immunity from damages. Moreover, no reasonable jury could

find for Dr. Singh on the merits of his claims. We therefore

affirm the district court's entry of summary judgment for Blue

Cross and Dr. White.

Affirmed.

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