Bender v. Suburban Hospital, Inc.

THIEME, Judge. This is an appeal from a summary judgment in favor of appellees, Suburban Hospital, Inc., and William Minogue, M.D., Suburban’s Senior Vice President for Medical Affairs. Appellant Dr. Bender’s complaint alleged that Suburban breached a contract of employment by terminating her clinical privileges and that both defendants defamed her and intentionally interfered with contractual relations and prospective advantage. The complaint prayed for injunctive relief and damages.

The trial court first granted partial summary judgment for Suburban on the breach of contract count. It found that Suburban’s Medical Staff Bylaws, which guarantee that “[mjedical staff membership status and. clinical privileges shall be granted or denied without regard to sex,” did not create an enforceable obligation. The court later disposed of the other counts on final summary judgment, finding that the Health Care Quality Improvement Act (“HCQIA”), 42 U.S.C. § 11111 et seq. (1994), renders appellees immune from suit.

It entered final judgment in favor of appellees on all counts on September 10, 1999, and this appeal duly followed. Dr. Bender asks: 1. Did the court below err in granting summary judgment for defendants, even though the HCQIA affords qualified immunity only from liability for damages, and Dr. Bender also sought injunctive relief? 1 ¹³ 2. Did the court below err in finding that the HCQIA bars Dr. Bender’s damage claims on the ground that the evidence failed to raise a jury question as to whether a.

Suburban made “a reasonable effort to obtain the facts of the matter,” as required by 42 U.S.C. § 11112 (a)(2); b. The action against Dr. Bender was taken in the reasonable belief that it was “in furtherance of quality health care,” as required by 42 U.S.C. § 11112 (a)(1); and c. The action against Dr. Bender was taken in the reasonable belief that it was “warranted by the facts known after ... reasonable effort to obtain [the] facts,” as required by 42 U.S.C. § 11112 (a)(4)? 3. Did the trial court err in holding that Article II, Section C of Suburban’s Medical Staff Bylaws did not create an enforceable contractual obligation?

We answer “no” to these questions and explain. Facts Dr. Carol Bender held clinical privileges continuously at Suburban Hospital from 1977, when she first started practicing internal medicine, until February 21, 1996. Appellees concede her clinical competence, and no patient has ever complained about the quality of her care. Despite the present controversy, many fellow health care providers attest that they hold Dr. Bender in high regard.

She retains privileges ¹⁴ at Shady Grove Adventist Hospital in Gaithersburg and teaches at the George Washington School of Medicine. She has held leadership positions in the Montgomery County Medical Society and the Montgomery delegation to the Medical and Chirurgical Faculty of Maryland, which she represents on the State Board of Physician Quality Assurance. This board, we note, examines, licenses, supervises, and disciplines Maryland’s physicians. Despite her excellent professional reputation, Dr. Bender’s relationships with fellow health care providers at Suburban have been troubled.

Appellees cite reports dating from the early 1980’s documenting Dr. Bender’s rough language and obstreperous behavior and official warnings that had been issued. Despite these incident reports, the hospital reappointed Dr. Bender, with caveats about her behavior, for 1989 and 1990. 2 In November 1990, however, she was reappointed without caveats for 1991 and 1992. On June 17, 1992, Dr. Bender applied for reappointment for 1993 and 1994. Both Dr. James Wilson, the chairman of internal medicine, and Dr. Harris Kenner, the chairman of the Department of Medicine, recommended.Dr. Bender’s reappointment.

A short time later, Dr. Bender was summoned to a meeting with Doctors Kenner; John Saia, chairman of the Medical Staff; Ira Miller, chairman-elect of the Medical Staff; and Frederick Caldwell, Senior Vice President for Medical Affairs. All four physicians were members of the Medical Staff Executive Committee (“MEC”) and, as a group, they constituted, according to testimony, an informal credentialing subcommit ¹⁵ tee that convened on infrequent occasions. Before the meeting, Dr. Kenner told Dr. Bender that a “serious” threat to her hospital privileges existed. At the meeting, which took place on October 22, 1992, the committee presented Dr. Bender with a long list of the incident reports lodged in her quality assurance (“QA”) file.

Testimony showed that several of these reports may have been trivial or retaliatory in nature. 3 We also note that all incidents before November 1990 (the most recent of which occurred in March 1988) had been reviewed by the hospital when Dr. Bender renewed her privileges for 1991 and 1992, and, at that time, they presented no problem. The incidents for 1991 include an “altercation” with a member of the nursing staff. The report reveals, however, no accusations of abusive, vulgar or hostile words on Dr. Bender’s part, and, in fact, the handwritten transmittal note shows intent on the part of the Administrator of Nursing to diminish Dr. Bender’s reputation. 4 Dr. Bender received no notice of this report until the October 22 meeting. Reviewing physicians, including Doctors Kenner and Wilson, found that the incident raised no major quality assurance issues. ¹⁶ The second incident after 1988 occurred in August 1992, when a teenage girl of whose condition Dr. Bender had been informed was held in the Emergency Room for several hours.

Without notifying Dr. Bender that the girl had arrived, emergency personnel subjected her to several procedures, including tests for HIV and sickle cell anemia, a CT scan, and a lumbar puncture. When Dr. Bender reached the hospital, she correctly diagnosed the girl’s condition to be tonsillitis and strep throat. From some reports, Dr. Bender was visibly angry about what had happened, although no one testified that she had been abusive. As she had done before, she requested a QA review, which found that the Emergency Room had violated several applicable standards.

Shortly after the incident, Dr. Paul Rothstein, chairman of the Emergency Department, wrote a bitterly worded letter to Dr. Caldwell stating: I find Dr. Bender’s behavior to be offensive, unprofessional, and personally demeaning. Unfortunately, this is characteristic behavior for her. I am writing this letter to seek your advice and counsel in how to proceed or if to proceed any further. In my experience in dealing with attendings from all services in this hospital for nearly six years now, I find that Dr. Bender’s behavior is far beyond the norm.

While I cannot comment, specifically, on her medical abilities, her personal interactions are nearly uniformly found to be inappropriate. Is this the type of physician we need or want on our medical staff? The last report involved a conversation in October 1992, between Dr. Bender and QA coordinator Mary Freeman, held in the Medical Records Department, an area of the hospital that is off-limits to patients and their families. Dr. Bender showed Freeman a patient chart and said, “You have to review this patient; her care was all fucked up.” She then reviewed the patient’s chart with Freeman, “using occasional expletives.” Dr. Saia later asked Freeman to submit a complaint for Dr. Bender’s QA file.

We note, however, that several physicians, including Dr. Bender’s accusers, admitted in testimony or depositions that the use of foul language, even in the ¹⁷ presence of patients, was almost a way of life for some male physicians at Suburban. Dr. Bender assured the ad hoc credentials subcommittee that she would work harder to respect the sensibilities of others and improve the way in which she communicated her concerns about patient care. The group concluded: In view of the three year hiatus following a previous counseling and her stated willingness to improve her behavior, the group was willing to accept her promise and hope for a permanent improved outcome. The rapprochement between Dr. Bender and the subcommittee, however, was fugacious.

One of Suburban’s surgeons, “Dr. Johnson,” 5 who was well-known for his short temper, performed emergency surgery for peritonitis, a life-threatening condition, on one of Dr. Bender’s patients on October 23, 1992. The patient later wrote in a letter to the hospital that, on October 25, Dr. Johnson completely lost control, “storm[ing] into [her] room screaming at the top of his lungs” that she “would have to choose between him and Dr. Bender” as her attending physician. He also verbally assaulted the attending nurse, shouting at her within the hearing of other staff about her “confrontational manner” and “lecturing” her that “I do not work for you. I am the doctor and you work for the hospital and me and I do not want you on any of my cases.” The next day, after seeing Dr. Bender writing notes at the nurses’ station, Dr. Johnson again raged into the patient’s room and yelled at her.

He “rip[ped] the dressing off [her] abdomen” with such force that she was sure he would tear the skin and the surgical staples holding her incision together. From the nurses’ station, Dr. Bender witnessed Dr. Johnson’s outburst. A fellow physician attests that Dr. Bender did not raise her voice. She countered that she thought of herself as a good physician, that Ms. Paradis was ¹⁸ her patient as well, and that she would continue to see the patient.

Dr. Bender then walked away. She was firm in her response to Dr. Johnson’s verbal onslaught.... I have never seen Dr. Bender exhibit conduct similar to that of Dr. Johnson. As I stated earlier, Dr. Bender is a good doctor who in my experience has never compromised the care of her patients.

Dr. Bender notified Dr. Kenner about the incident, and he advised her to continue seeing the patient, but to refrain from writing any orders. Doctors Caldwell, Saia, and Kenner summoned Dr. Bender to a meeting on November 25 in order to discuss the incident with Dr. Johnson. Dr. Johnson refused to talk while Dr. Bender was present, so she left, unwillingly, while he gave his version of events. Immediately after the meeting, however, Dr. Caldwell prepared a summary stating that “in the patient’s room and later on the nursing station” the “two physicians argued loudly with each other in the hearing of nursing staff; patients, and visitors,” and that “both physicians had acted inappropriately in having an argumentative outburst publically [sic ] over these issues and [the three senior physicians] so advised both physicians.” Dr. Caldwell contacted none of the witnesses to the incident — not even the patient— before he filed the report.

Nevertheless, his report became the official version filed in Dr. Bender’s QA file. A nurse’s note was also placed in the file, with Dr. Johnson’s name redacted, that made it appear that Dr. Bender was actually the ill-behaving physician. Additionally, Dr. Kenner asked Dr. Bender not to file an incident report because Dr. Johnson was already in trouble with his department chairman. The hospital took no action to deny or abridge Dr. Johnson’s privileges. 6 ¹⁹ On November 20, Suburban’s Credentials Committee met to consider Dr. Bender’s application for reappointment.

The minutes imply that the committee agreed to recommend Dr. Bender’s reappointment but voted to warn her that “any subsequent problems would be reviewed immediately and could result in termination of her privileges.” On December 1, however, the MEC, which included Dr. Rothstein and all members of the Credentials Committee, opined that, in light of the official summary of the Dr. Johnson incident, Dr. Bender “possibly was an impaired physician.” 7 Because the Medical Staff chairman had doubts as to whether Dr. Bender was actually impaired and because hospital bylaws empower only the Credentials Committee to order a psychiatric evaluation, Dr. Bender’s application was ultimately remanded to Credentials. Credentials promptly ordered that she be evaluated at Suburban’s expense by Dr. William Flynn, a Georgetown University psychiatrist who treats impaired physicians. Dr. Flynn examined Dr. Bender on February 19, 1993. Before the examination, Suburban transmitted to him a copy of her QA file, including the material on the Dr. Johnson incident.

Suburban asked for Dr. Flynn’s help in changing, or at least understanding, Dr. Bender’s behavior. Dr. Flynn found that, although Dr. Bender took seriously the potential threat to her career that Suburban’s cancellation of her privileges would pose, [w]hen we tried to discuss the overall impact of all the instances and her manifestation of a continuing inability to recognize the reactions of others to her behavior she gave evidence that she did not really “tune in to” other people’s feelings or responses. Although the average person would ²⁰ learn from such confrontations, it appeared that Dr. Bender does not learn and that she becomes so defensive she does not allow herself to consider the information being given her and therefore her behavior does not change. She is not terribly disturbed by her behavior, although the possible consequences have become a concern.

In his report, Dr. Flynn referenced the incident with Dr. Johnson, labeling Dr. Bender’s behavior then as “inappropriate.” Dr. Flynn recommended that Dr. Bender be required to engage in a course of psychotherapy “aimed at insight and behavior change,” to be monitored by him or “a similar consultant who would be in communication with Dr. Bender’s therapist and with the Credential’s [sic ] Committee.” He conceded, however, that she was not “impaired” within the customary meaning of that term. Moreover, Dr. Flynn was informed at a hospital hearing, see infra, that witness reports showed that Dr. Bender’s reaction to Dr. Johnson’s tantrum was quite restrained. The following exchange occurred: [APPELLANT’S COUNSEL]: Isn’t it true ... she did exactly that, she walked out? [DR. FLYNN]: Is that true?

That is good. In response to Dr. Flynn’s report, and after hearing from Dr. Bender and her personal psychiatrist, Dr. Milton Glatt, the Credentials Committee approved a resolution on April 15 that Dr. Bender be reappointed on the condition that she agree to behavioral counseling under Dr. Flynn’s guidance. The MEC ratified this recommendation, noting the “sheer number” of incidents, and so informed the Board of Trustees. Dr. Bender contested the requirement that she receive behavioral counseling, because of the harm it might bring to her professional standing.

Citing Medical Staff Bylaws, she requested a hearing, which allowed her privileges to continue through the hospital’s fact-finding and review processes. A hearing panel including Doctors Antoni Goral, John Eng, Richard Pollen, and Donald Fontana was appointed. The hearing commenced on January 4, 1994, and it continued for eight evening sessions spread over several months. The panel heard from Dr. Bender; witnesses supporting her; those ²¹ witnesses put on by the Medical Staff, including nurses that Dr. Bender had intimidated; and Dr. Rothstein, who addressed Dr. Bender’s clashes with Emergency Department personal.

It also heard some testimony regarding possible discrimination on the basis of gender and religion. 8 On January 26,1995, the panel upheld the MEC’s basic conclusion that Dr. Bender must undergo behavioral counseling, finding that the committee had “performed their functions exhaustively as to Dr. Bender’s reappointment application.” Dr. Pollen testified at deposition that the panel had been impressed by “the volume of complaints and the severity of complaints,” noting that, although some incident reports seemed trivial, “the whole is bigger than the sum of its parts.” 9 Dr. Pollen also averred that Dr. Rothstein’s complaints about Dr. Bender had been taken at face value — “I mean, this is the Chairman of the Department of Emergency Medicine” — despite her within-channels inquiries about the care received by some of her patients. Meanwhile, because she believed she was being dealt with according to a different standard than her male colleagues, ²² Dr. Bender filed gender discrimination charges against Suburban with the U.S. Equal Employment Opportunity Commission (“EEOC”) and the Maryland Commission on Human Relations in August 1993. As the hearing panel was concluding its work, Suburban sought to have those proceedings dismissed and procured an agreement with Dr. Bender contemplating full privileges in exchange for dismissal and release of those charges. Dr. Bender signed this agreement on April 4, 1995, but, when Suburban’s president failed to execute it immediately, 10 she withdrew her assent on April 7 and refused to dismiss her discrimination claims.

On April 4, 1995, the MEC considered the hearing panel’s report and noted: [Tjhere have been no reports of behavioral problems in the Hospital by Dr. Bender since 1992. Accordingly, the goal of the Medical Staff Executive Committee which was to improve Dr. Bender’s behavior in the Hospital at this time appears to have been accomplished.... [B]ased on the fact that there had been an extended period of time without Dr. Bender’s having further problems, and that Dr. Bender had made a commitment to avoid problems in the future, it was not necessary to continue to insist on behavioral counseling as a condition to reappointment. Any recommendation ... should not in any way be interpreted as a reversal of [the committee’s] earlier position or a rejection of the recommendations which have been made by the Hearing Panel. Rather, it is a recognition that through the review process, Dr. Bender has apparently gained some awareness of the effect her conduct has on others and developed a -willingness to avoid problems in the future.

The Committee added, however, that “any further significant incidents involving Dr. Bender’s behavior ... should be dealt ²³ with promptly and further action, including termination of privileges, may be appropriate.” On April 26, the Board of Trustees voted to reappoint Dr. Bender without behavioral counseling, but only if she agreed to confirm before May 1 her willingness to dismiss the discrimination claims. Dr. Bender failed to do so, and on May 2, after reconsideration of all case materials, the MEC reinstated the requirement for behavioral counseling. The only thing that changed, we note, between the committee’s vote on April 4 and its vote on May 2, was that Dr. Bender had decided not to give up her legal claims against the hospital, as Dr. Kenner so testified at deposition: Q: Okay. So now the only thing that has changed between April and May is whether Dr. Bender did or did not sign that agreement. [APPELLEE’S COUNSEL]: I object.

Q: You can go ahead and answer it. A: Well, because it had great significance, it had great sort of psychological significance to me. It meant to me that she really wasn’t interested in changing, she wasn’t willing to make the commitment. So it had psychological import to me and I think other members of the Executive Committee.

It was, “There goes Carol again. She’s off and ready to manipulate us in some other way.” On November 15, 1995, the Maryland Commission on Human Relations found probable cause that Suburban had discriminated against Dr. Bender because she was a woman. Its findings were based, inter alia, upon a review of other physicians’ QA files and disciplinary histories and the statements of other Suburban physicians. The Commission found evidence that similarly situated male physicians were disciplined less severely than Dr. Bender, if at all, when their conduct was similar or even quite worse.

Neither were they held to the same standard as Dr. Bender for the renewal of privileges, even when there existed significant patient care issues, which were not present in Dr. Bender’s case. Further, the investigation noted that similarly situated male physicians did not ²⁴ lose privileges unless they endangered patients or were already under psychiatric care. 11 On February 21, 1996, the Board of Trustees took final action, denying Dr. Bender’s reappointment, after it reviewed Dr. Flynn’s report, the various reports and recommendations of the Credentials and Medical Executive Committees, and the findings of the anti-discrimination agencies. 12 The Board justified its decision as follows: [I]t was the consensus of a majority of the Board of Trustees that Dr. Bender had a long history of disruptive and abusive conduct in the Hospital. Although there had been no recent episodes of disruptive conduct while the peer review proceedings had been pending, it was felt that Dr. Bender did not recognize and acknowledge her disruptive conduct and the significant impact it had on Hospital operations. Moreover, it was felt that there was insufficient evidence that such problems would not reoccur in the future, particularly in light of Dr. Bender’s refusal to obtain professional counseling to deal with her behavior problems as had been recommended....

The Board’s action was reported to the National Professional Data Bank, where its presence would alert other hospitals where Dr. Bender might seek privileges to her problems at Suburban. The Maryland Board of Physician Quality Assurance also received a report, investigated the case thoroughly, and concluded that events warranted no action against Dr. Bender’s license. ²⁵ As for the sex discrimination claims, both the State and federal claims ultimately failed because Dr. Bender was not an employee of Suburban within the statutory definition and thus did not qualify for protection against employment discrimination. The EEOC dismissed Dr. Bender’s claim on July 3, 1995, and she challenged that finding in United States District Court. See Bender v. Suburban Hosp., 998 F.Supp. 631 (D.Md.), aff'd, 159 F.3d 186 (4th Cir.1998); see also 42 U.S.C. § 2000e-2(a)(l) (“It shall be an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin”).

Likewise, her State claim ultimately failed, despite favorable initial findings by the Maryland Human Relations Commission. See Maryland Comm’n on Human Relations v. Suburban Hosp., 113 Md. App. 62 , 686 A.2d 706 (1996), vacated, 348 Md. 413 , 704 A.2d 445 (1998); see also Md.Code (1957, 1998 Repl.Vol., 1999 Cum.Supp.), Art. 49B § 16 (“It shall be an unlawful employment practice for an employer ... [t]o fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, age, national origin, marital status, or disability unrelated in nature and extent so as to reasonably preclude the performance of the employment”). In the federal Title YII case, Dr. Bender had joined common law claims for defamation, breach of contract, intentional inference with contractual relations, and intentional interference with prospective economic advantage. These claims were dismissed without prejudice, and Dr. Bender filed the suit sub judice in the Circuit Court for Montgomery County.

After that court granted Suburban’s motions for summary judgment, Dr. Bender noted the present appeal. Discussion Dr. Bender presents in this action what may be a legitimate gripe; to her misfortune, no legally cognizable means of ²⁶ redress exists. Each side’s guided tour of the record extract and our own examination of the same show that Dr. Bender put patient welfare above all else but often expressed her strong preferences and opinions in ways that badly offended the sensibilities of others. For this reason, some staff persons and reviewing physicians at Suburban Hospital may have harbored personal animus against Dr. Bender, and indeed, they might have held her to a higher standard of comportment than that to which they would hold a male physician.

Clearly, her professional reputation has suffered because of Suburban’s de-credentialing. The HCQIA, however, severely constrains the courts’ ability to grant relief. This action is the most recent of Dr. Bender’s efforts to obtain relief. Both the United States Court for the District of Maryland and the Circuit Court for Montgomery County determined that federal and State employment discrimination statutes do not apply.

See Bender, 159 F.3d at 190-91; Comm’n on Human Relations, 113 Md.App. at 91 , 686 A.2d 706 . Dr. Bender thus turned to the common law, seeking to have a jury decide her cause in contract and in tort. Congress has decided, however, that charges of personal animus or subjective bias — even that which would be considered illegal in the context of employment — are irrelevant when challenging a medical peer review process, if the reviewing committee otherwise acted within the HCQIA’s guidelines for immunity. In its amicus brief, MedChi claims that the HCQIA implies an affirmative duty to investigate and consider allegations of discrimination in order to satisfy its standards for the granting of immunity.

In reply, MHA and, arguing in the alternative, Suburban, claim that, even if MedChi is right, Maryland’s own medical review committee statutes, Maryland Code (1981, 1994 RepLVol., 1999 Cum.Supp.), §§ 14-501 & 14-504 of the Health Occupations Article, prohibit the use of other physicians’ files related to the granting of privileges in an investigation for the purpose of establishing a pattern of discrimination. We begin by addressing the issues raised by the amicus curie briefs, which must be resolved at the threshold, then we turn to appellant’s questions presented. ²⁷ I The court below based its decision on its reading of the HCQIA, which grants professional reviewing bodies, their members, staff, and contractors immunity from damages for professional review actions, including negative evaluations that might affect clinical privileges. See § 11111(a); § 11151(9). Immunity attaches if a professional review action is 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). § 11112(a).

The HCQIA specifically exempts from immunity causes of action under “any law of the United States or any State relating to the civil rights of any person or persons, including the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. and the Civil Rights Acts, 42 U.S.C. § 1981 , et seq.” In her unsuccessful cases preceding the action sub judice, Dr. Bender sued appellees under the Civil Rights Act of 1964 and Maryland employment discrimination statutes. Had her association with Suburban fallen within the statutory definition of employment, these actions would have gone forward and Suburban’s reviewers would not now enjoy immunity. MedChi argues that, in addition to providing a specific exemption from immunity for certain statutory causes of action, this clause implies an affirmative duty for review committees to investigate fully, perhaps with even greater vigor than the normal fact-finding process, any allegations of discrimination a physician might present during peer review. Because Dr. Bender was unable to find relief under employment discrimination statutes, Med-Chi stresses that “the only place where she can present a case ²⁸ of sex discrimination is the peer review process mandated by HCQIA,” for “[t]here appears to be no forum for a female physician, even one with an unassailable claim of sex discrimination, to bring action against a Maryland hospital.” We cannot, however, adopt the interpretation that MedChi claims underlies the plain language of the HCQIA.

Although MedChi’s contention that a female physician has no freestanding cause of action for sex discrimination against a hospital that denies her privileges may be true and, if so, is troubling indeed, this Court’s proper role does not encompass filling those voids that the legislature left unfilled in derogation of clear statutory language. To be sure, the HCQIA was intended to exclude from immunity those parties who illegally discriminate against other physicians or seek to suppress competition, 13 and Congress included specific statutory provisions intended to address those policy goals. As a state court, however, we are chary of overreaching clearly expressed congressional intent, especially when federal courts thus far have been unwilling to do so. Federal and Maryland cases support our position that the HCQIA entitled Dr. Bender’s case to reasonable but not heightened scrutiny, regardless of the accusations of wrong-doing she made. 14 Under the HCQIA, the reviewing body must meet a standard of objective reasonableness, based upon the totality of the circumstances, Pamintuan v. Nanticoke Mem.

Hosp., 192 F.3d 378, 389 (3d Cir.1999); Imperial v. Suburban Hosp. Ass’n, 37 F.3d 1026, 1030 (4th Cir.1994); Goodwich v. Sinai Hosp. of Baltimore, Inc., 343 Md. 185, 208 , 680 A.2d 1067 (1996), and not on a subjective standard of good ²⁹ faith. 15 Austin v. McNamara, 979 F.2d 728, 734 (9th Cir.1992) (citing legislative history of § 11112(a)). Objective reasonableness does not imply that the peer review committee’s process is perfect or even correct in every respect. See, e.g., Imperial, 37 F.3d at 1030 (“even if Imperial could show that these doctors reached an incorrect conclusion on a particular medical issue because of a lack of understanding, that 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”); Perez v. Pottstown Memorial Medical Center, No. CIV. 97-3334, 1998 WL 464916 , at ¹⁰ (E.D.Pa.

Aug. 3, 1998) (“The court is mindful that ‘[pjlaintiff is entitled to a reasonable investigation under the [HCQIA], not a perfect investigation.’ ”) (quoting Sklaroff v. Allegheny Health Educ. Research Found., No. Civ. A. 95-4758, 1996 WL 383137 , at ⁸ (E.D.Pa. July 8, 1996) (citations and internal quotation marks omitted), aff'd, 118 F.3d 1578 (3d Cir.1997)), aff'd, 210 F.3d 358 (3d Cir.2000); Goodwich, 343 Md. at 212 , 680 A.2d 1067 .

Instead, the sole issue here is whether the basis for Suburban’s challenged professional review action is in the main sufficient. See Brader v. Allegheny Gen. Hosp., 167 F.3d 832 (3d Cir.1999). The objective reasonableness standard is thus satisfied “ ‘if the reviewers, with the information available to them at the time of the professional review action, would reasonably have concluded that their actions would restrict incompetent behavior or would protect patients.’ ” Mathews v. Lancaster Gen.

Hosp., 87 F.3d 624, 635 (3d Cir.1996) (quoting H.R.Rep. No. 99-903, at 10). As long as Suburban’s peer review bodies had enough information to justify the denial of her reappointment, it is irrelevant to ³⁰ this case whether Suburban’s peer reviewers personally disliked Dr. Bender, sought to retaliate against her for criticizing the quality of care that other providers had given her patients, reneged on a not-yet-executed settlement agreement, or even seemed to hold her to a higher standard of comportment than some of her male colleagues. See Pamintuan, 192 F.3d at 378 (hospital immune despite some evidence of racial discrimination against Filipino physician, the failure of peer reviewers to discipline similarly situated white physicians and the hearing panel’s failure to compare disciplined physician’s records to those of other physicians); see also Sugarbaker v. SSM Health Care, 190 F.3d 905, 914 (8th Cir.1999) (“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.”), cert. denied, - U.S. -, 120 S.Ct. 980 , 145 L.Ed.2d 931 (2000); accord Brader, 167 F.3d at 840 (3d Circuit); Mathews, 87 F.3d at 635 (same); Bryan v. James E. Holmes Reg.

Med. Ctr., 33 F.3d 1318, 1335 (11th Cir.1994), cert. denied, 514 U.S. 1019 , 115 S.Ct. 1363 , 131 L.Ed.2d 220 (1995); Austin, 979 F.2d at 734 (9th Circuit). MedChi argues that Suburban deliberately suppressed Dr. Bender’s discrimination claims and overrode her efforts to have peer reviewers compare her file to the files of similarly situated male physicians. This claim is not entirely true.

Although the record shows that the hearing committee chairman sustained objections to Dr. Bender’s attempts to introduce some testimony regarding the behavior of other physicians, see supra note 8, considerable testimony was allowed, overruling the objections of the Medical Staffs counsel. 16 ³¹ Moreover, the Board of Trustees, which made the final determination on Dr. Bender’s privileges, took into account the probable cause findings of the Maryland Commission on Human Relations. 17 We also note that the cases Dr. Bender cites fail to support her proposition that the hospital was obligated as part of the peer review process to consider the QA records of all similarly situated male physicians. These cases go to the non-privileged nature of such records under the HCQIA for claims covered by that act’s civil rights exception. Conversely, they do not create an absolute requirement that such evidence must always be considered in the face of allegations of discrimination. See Johnson, v. Nyack Hosp., 169 F.R.D. 550, 559-61 (S.D.N.Y.1996) (for federal racial discrimination action based on hospital’s failure to reinstate African-American surgeon, no federal privilege applies to peer review materials); LeMasters v. Christ Hosp., 791 F.Supp. 188, 189-92 (S.D.Ohio 1991) (federal law of privilege, i.e., no privilege exists, applies to peer review materials in sex discrimination case, even if such materials would be privileged under Ohio law); Dorsten v. Lapeer County Gen.

Hosp., 88 F.R.D. 583, 586 (E.D.Mich.1980) (federal law of privilege applies to peer review materials in sex discrimination case, even if such ³² materials would be privileged under Michigan law). On the other hand, in Pamintuan, 192 F.3d at 389 , which bears a striking similarity to the instant case, the Third Circuit held that the gathering of evidence from other doctors’ records was not necessary to fulfill the requirement for reasonable fact-gathering when a disciplined physician claimed racial and ethnic discrimination. We thus reject MedChi’s interpretation of Suburban’s duties under the HCQIA. Because the HCQIA did not require Suburban’s peer reviewers to focus on Dr. Bender’s discrimination claim or examine the QA files of similarly situated male physicians, we need not fully expound upon the theory raised by the MHA and Suburban regarding the immunity and confidentiality requirements of sections 14-501 18 and 14-504 19 of the Health Occupations Article. 20 We note, however, that the MHA stretches the statute.

To be sure, the immunity provided by Maryland’s statute might in some circumstances exceed that ³³ provided by the HCQIA, because Maryland requires that reviewers act under a good faith standard, rather than a standard of objective reasonableness. See Md.Code (1973, 1998 Repl.Vol.), § 5-637 of the Courts & Judicial Proceedings Article. 21 Goodwich, 343 Md. at 214 , 680 A.2d 1067 , affirms our holding in Goodwich v. Sinai Hosp. of Baltimore, 103 Md.App. 341 , 653 A.2d 541 (1995), that heightened immunity may be possible: The standard under the Maryland statute is different from that under Federal law. Maryland law requires that a member of a review committee act in good faith, whereas Federal law, as noted, provides objective standards of reasonableness. Although the State law may thus appear to be inconsistent with the Federal law in that regard, it is not necessarily so. 42 U.S.C. § 11115 (a) provides that “nothing in this subchapter shall be construed as changing the liabilities or immunities under law or as preempting or overriding any State law which provides incentives, immunities, or protection for those engaged in a professional review action that is in addition to or greater than that provided by this part.” (Emphasis added).

In practice, the State and Federal statutes may co-exist. If a medical review body’s actions are performed with malice, but nonetheless are deemed to be objectively reasonable, the body will be immune under Federal law; the lack of State immunity because of the absence of good faith would be immaterial, for the Federal law would govern. If, however, the review actions are not objectively reasonable, thereby providing no Federal immunity, the court would then have to consider whether the actions were nonetheless taken in good faith, for, if they were, State immunity might exist. ³⁴ The State law, in other words, may, in some circumstances, provide additional immunity or protection to medical review bodies. The State law is preempted by the Federal only to the extent that it provides less immunity than the Federal, not to the extent it provides more.

Id. at 355 , 653 A.2d 541 (citations omitted) (emphasis in original). Immunity under Maryland’s statute, if granted, extends to all civil liability, see § 14 — 501(f), and not just to damages like the HCQIA. See 42 U.S.C. § 11111 (a); see also Imperial, 37 F.3d at 1031-32 . Additionally, Maryland’s statute blankets “the proceedings, records, and files” of medical review committees with confidentiality by rendering such information non-discoverable and inadmissible in evidence. § 14-501(d)(l).

Because the instant case seems to us “[a] civil action brought by a party to the proceedings of the medical review committee who claims to be aggrieved by the decision of the medical review committee,” § 14-501(e)(l), Suburban’s records for Dr. Bender might have been discoverable and immunity -'might not attach if the HCQIA did not govern the outcome of this case. See Brem v. DeCarlo, Lyon, Hearn & Pazourek, 162 F.R.D. 94, 97 (D.Md.1995) (exception under section 14-501(e)(l) controls only when physician who is the subject of a peer review action has been aggrieved by that action). Dr. Bender, of course, would have been required to establish bad faith on the part of the reviewers. § 14-501(f). Furthermore, we believe that State and federal immunity and State confidentiality provisions, although important to protect the public from incompetent practitioners, cannot be used to shield persons who would perpetuate truly unlawful conduct under the guise of professional discipline.

Cf. Unnamed Physician v. Commission on Med. Discipline, 285 Md. 1, 13 , 400 A.2d 396 (1979) (confidentiality statute intended in part to “prevent outsiders, such as former patients, from getting minutes and notes that relate solely to disciplinary proceedings,” for use in malpractice cases), with Price v. Howard County Gen. Hasp., 950 F.Supp. 141, 143 (D.Md.1996) (finding Maryland medical peer review privilege inapplicable in suit ³⁵ against hospital for antitrust violations because “the Court must balance the need for discovery ... against the policies behind state privilege”).

Were this case a statutory action for discrimination, brought under Title VII or other laws encompassed within the civil rights exceptions of section 11111(a), section 14-501(e)(l) might dissolve any confidentiality for Dr. Bender’s records, and arguably for the records of similarly situated male physicians. In such case, the reviewers might lose immunity under section 14 — 501(f) if Dr. Bender could prove that they acted in bad faith. 22 We thus reject the MHA’s reading of Maryland’s confidentiality and immunity provisions for medical peer review activities. II Appellant’s first argument is that the court erred by entering summary judgment, because she originally claimed not only money damages, which are covered by HCQIA immunity, see § 11111(a)(1) (“the professional review body ... shall not be liable in damages”), but also injunctive relief. Injunctive and declaratory relief are not covered by the Act. 23 See Imperial, 37 F.3d at 1031 (“the actual protection given by the' Act is limited to damages liability”); Mathews , 883 F.Supp. at ³⁶ 1035 (“the Act does not provide immunity from suit or from injunctive or declaratory relief’).

In response, Suburban argues, citing Sugarbaker and Imperial , that Dr. Bender abandoned her claim for injunctive relief because she failed to pursue that remedy with sufficient vigor. In cases similar to the one sub judice, the Fourth and Eighth Circuits have applied an “active pursuit” test requiring physicians (i) to move for injunctive relief and (ii) to press the issue after the defendants successfully assert HCQIA as to damages, in order to maintain a claim for injunctive relief. Sugarbaker, 190 F.3d at 918 ; Imperial, 37 F.3d at 1031 . Dr. Bender, they argue, quoting Imperial, 37 F.3d at 1031 , “merely ‘prayed’ for an injunction” and did not “move[ ] for injunctive relief or press[ ] the issue of injunctive relief when ‘the vitality of the Complaint, in its entirety, was put to the test on an immunity defense.’ ” Although Suburban conveniently omits Dr. Bender’s compliance with the second prong of the active pursuit test, 24 they note correctly that she failed the first prong. 25 The docket shows no motion for injunctive relief nor any effort to press that remedy on the court, other than Dr. Bender’s reference to her prayer for relief in her Motion in Opposition of Summary Judgment.

This reference, buried in a footnote on page ³⁷ 51, treats Dr. Bender’s prayer almost as an afterthought. We find that such treatment hardly qualifies as active pursuit. Dr. Bender also relies on Ishak v. Fallston Gen. Hosp. & Nursing Ctr., 50 Md.App. 473 , 438 A.2d 1369 (1982), a case we find inapposite.

In Ishak , we held that a physician whose hospital privileges were canceled in violation of that hospital’s own bylaws was entitled to procedural due process under those bylaws before being discharged. We held that the court had the authority in equity to enjoin the hospital to follow its bylaws. We gave the court the authority to use injunctive relief to right the wrongs inflicted by lack of process. Here, Suburban made a long and intensive effort, within the