Goodwich v. Sinai Hospital of Baltimore, Inc.

BELL, Judge. This case presents for our review the issue of whether summary judgment was properly granted in favor of the respondent, Sinai Hospital of Baltimore, Inc. (“Sinai”), based upon the immunity provided by the Health Care Quality Improvement Act of 1986 (“HCQIA” or “the Act”), 42 U.S.C. §§ 11101-11152 (1994). The petitioner, Kenneth Goodwich (“Dr. Goodwich”), sued Sinai in the Circuit Court for Baltimore City because it restricted his privileges to practice medicine in the hospital. The court granted Sinai’s motion for summary judgment on the ground that it was statutorily immune from suit.

On appeal, the Court of Special Appeals affirmed the judgment of the circuit court. Goodwich v. Sinai Hospital, 103 Md.App. 341 , 653 A.2d 541 (1995). At the petitioner’s request, we issued the writ of certiorari. We shall affirm the judgment of the Court of Special Appeals.

I. The professional relationship between Dr. Goodwich and Sinai, which is at the heart of this appeal, began in 1974, when Dr. Goodwich interned at the hospital. From 1975 to 1978, he served as a resident in the Obstetrics and Gynecology Department. Upon completion of his residency, Dr. Goodwich joined the hospital staff as an assistant attending physician. On June 29, 1988, after several years of discussion and correspondence with Dr. Goodwich regarding patient care ¹⁹⁰ issues, 1 Dr. Phillip Goldstein, the Chairman of the Obstetrics and Gynecology Department, sent Dr. Goodwich a letter, noting yet another patient care issue and suggesting that “in the litigious atmosphere of 1988” it would be prudent for him to obtain second opinions from board certified obstetricians and gynecologists (“OB-GYNs”) for all “high risk [obstetrical] patients.” 2 Dr. Goodwich agreed with Dr. Goldstein’s recommendation and so informed him by a letter dated August 12, 1988. ¹⁹¹ Over time, however, Dr. Goodwich failed to obtain second opinions as he had agreed to do.

Thus, in a letter dated January 22, 1990, Dr. Goldstein wrote to Dr. Goodwich advising him of his failure to abide by his second opinion agreement. He also addressed three issues involving patient care. The letter concluded by advising Dr. Goodwich that a written second opinion by a board certified OB-GYN for all patients who were “high risk by the criteria of Calvin Hobel” 3 was required to be obtained and that, unless Dr. Goodwich complied voluntarily, Dr Goldstein would “present [a] recommendation for abridgement of [Dr. Goodwich’s] privileges to the Medical Executive Committee on May 1, 1990.” This prompted a February 1990 meeting between Dr. Goldstein and Dr. Goodwich’s attorney. In that meeting it was agreed that Dr. Goldstein would not seek abridgement of Dr. Goodwich’s privileges, provided that Dr. Goodwich obtained second opinions on all of his high risk patients.

This agreement was memorialized in a letter dated February 26, 1990 from Dr. Goodwich’s attorney to Dr. Goldstein. Nevertheless, Dr. Goodwich’s violation of the second opinion agreement continued, as did the instances in which his patient care was questioned. 4 Consequently, Dr. Goldstein asked the Director of Quality, Risk & Utilization Management at Sinai to examine Dr. Goodwich’s compliance with the second opinion ¹⁹² requirement. That information, provided to Dr. Goldstein on December 2, 1991, revealed Dr. Goodwich’s failure to obtain second opinions for several high risk patients. It also revealed additional problems with Dr. Goodwich’s patient management methods. 5 Dr. Goldstein, therefore, met with Dr. Goodwich to discuss these issues.

Once again, Dr. Goodwich agreed to obtain second opinions in high risk obstetrical cases. Dr. Goldstein confirmed the agreement in an April 23, 1992 letter to Dr. Goodwich. In the letter, Dr. Goldstein also reemphasized that the required second opinion had to be in writing and posted in the patient’s chart prior to surgery. In June 1992, Dr. W. Scott Taylor, who was then acting Chief of the Obstetrics and Gynecology Department, Dr. Goldstein having left Sinai to accept a position at another hospital, wrote to Dr. Goodwich concerning two patient care issues. 6 In December 1992, Dr. Taylor asked Sinai’s Director of Quality, Risk & Utilization Management, once again, to review Dr. Goodwich’s compliance with the second opinion requirement.

Responding to Dr. Taylor’s request, the Quality Assurance Committee, on January 27, 1993, reported to Dr. John L. Currie, who had earlier been appointed Chief of the Obstetrics and Gynecology Department, that since April 1992, the date when the second opinion agreement was reaffirmed for the third time, Dr. Goodwich had not obtained second opinions in 8 obstetrical cases. On January 28, Dr. Currie met with Dr. Goodwich to discuss this matter. At that time, Dr. Goodwich ¹⁹³ again agreed to obtain second opinions in high risk obstetrical cases. On that same date, Dr. Currie sent Dr. Goodwich a letter confirming the latest agreement and advising him that his privileges had been extended to March 31, 1993, but that renewal was dependent upon his obtaining written second opinions and direct supervision by board certified OB-GYNs for certain obstetrical and gynecological procedures. 7 Dr. Currie also advised Dr. Goodwich that his failure to obtain the second opinions for those specified procedures would result in further action against his privileges.

Although he was requested to acknowledge his agreement with its contents by signing the letter, Dr. Goodwich declined to do so. On February 2, however, Dr. Goodwich and his attorney met with Dr. Currie, at which time Dr. Goodwich verbally agreed to the second opinion requirement. When subsequently faced with yet another failure by Dr. Goodwich to obtain a second opinion, as well as further patient care concerns, 8 Sinai, consistent with the January 28 letter, responded by temporarily abridging his privileges. This abridgement was memorialized in a letter from Dr. Currie to Dr. Goodwich dated February 26, 1993.

In the letter, Dr. Currie informed Dr. Goodwich that this action was taken pursuant to Article IV, § 7C of the By-Laws, Rules and ¹⁹⁴ Regulations of the Medical Staff of Sinai Hospital. 9 The letter also informed Dr. Goodwich that the Medical Executive Committee (“MEC”) would consider permanent abridgement of his privileges on March 8. It also provided him with the time and location of the meeting and advised him of his right to attend. Prior to the MEC meeting, Dr. Goodwich’s counsel was provided with a list of the specific cases under consideration and, in addition, the hospital’s medical records for each patient were made available for his inspection. During the meeting, at which Dr. Goodwich, represented by counsel, was present, Dr. Currie discussed the proposed abridgement with the Committee members and the reasons for it.

After allowing Dr. Goodwich to make a statement and to respond to questions from its members, the MEC voted to abridge Dr. Goodwich’s privileges for a period of three months, beginning March 8, 1993, on the same terms and conditions as the prior temporary abridgement. 10 The change in Dr. Goodwich’s privileges was reported to the Maryland State Board of Physician Quality Assurance and the National Practitioner Data Bank. 11 After the meeting, Dr. Goodwich requested, and received, before a panel of three physicians, an evidentiary hearing to consider the reasonableness of the MEC’s decision. He subsequently requested, and received, an administrative hearing before another three-physician panel. Both panels affirmed ¹⁹⁵ the decision of the MEC, as did Sinai’s Board of Trustees at a subsequent meeting. Within four days after and based upon the March 8 abridgement, Dr. Goodwich filed suit against Sinai and the MEC 12 in the Circuit Court for Baltimore City, alleging civil conspiracy, denial of procedural due process, breach of contract, intentional interference with contractual relations, and tortious interference with prospective economic benefit.

On May 12, 1993, by stipulation of dismissal, the MEC was dismissed from the suit as were the civil conspiracy and due process counts. On January 17, 1994, Sinai filed a motion for summary judgment as to all remaining counts, claiming immunity under the HCQIA and state law. The hospital attached to the motion its correspondence with Dr. Goodwich over the years, hearing transcripts, as well as various other exhibits, including Supplemental Exhibit 25, which it identified as his credentialing file. After a hearing on the matter, the motion was granted. 13 ¹⁹⁶ Dr. Goodwich appealed to the Court of Special Appeals.

That court, as previously noted, affirmed the judgment of the circuit court. Goodwich v. Sinai Hospital, supra, 108 Md. App. at 355, 653 A.2d at 548 . The intermediate appellate court concluded that the hospital acted reasonably as the HCQIA requires and, therefore, was entitled to the immunity it provides. It further held that, because Sinai was immune from damages under federal law, it was unnecessary to reach the question of state law immunity.

As we have also already noted, we granted Dr. Goodwich’s petition for the writ of certiorari.

II

A. Congress enacted the HCQIA in 1986 for the express purpose of “ ‘improvfing] the quality of medical care by encouraging physicians to identify and discipline other physicians who are incompetent or who engage in unprofessional behavior.’” Bryan v. Holmes Regional Medical Center, 33 F.3d 1318, 1321 (11th Cir.1994), cert. denied — U.S.-, 115 S.Ct. 1363 , 131 L.Ed.2d 220 (1995) (quoting H.R.Rep. No. 903, 99th Cong., 2d Sess. 2, reprinted in 1986 U.S.C.C.A.N. 6287, 6384). Moreover, Congress stated, in the text of the statute, 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) (1994). It further stated that such problems “can be remedied through effective professional peer review.” Id. § 11101(3).

Thus, in keeping with its stated objective, the HCQIA provides participants in peer review activities with qualified immunity from liability for monetary damages in suits brought by the physicians who were' the subjects of these review ¹⁹⁷ activities. 14 The Act provides immunity for medical peer review actions if four statutory elements exist: For purposes of the protection set forth in section 11111(a) of this title, a professional review action must be taken— (1) in the reasonable belief that the action was in the furtherance of quality health care, (2) after a reasonable effort to obtain the facts of the matter, (3) after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances, and (4) in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirement of paragraph (3). 42 U.S.C. § 11112 (a) (1994). Section 11112(a) further states: A professional review action shall be presumed to have met the preceding standards necessary for the protection set out in section 11111(a) of this title unless the presumption is rebutted by a preponderance of the evidence. The term “professional review action” is defined in § 11151(9), which provides, in pertinent part: [A] ‘professional review action’ means an action or recommendation of a professional review body[ 15 ] which is taken or made in the conduct of professional review activity, ¹⁹⁸ 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. The legislative history of § 11112(a) reveals that Congress intended that the test of the statute’s reasonableness requirements be an objective one, rather than a subjective good faith standard.

The House Report on that section states, in relevant part: Initially, the Committee considered a ‘goodfaith’ standard for professional review actions: In response to concerns that ‘goodfaith’ might be misinterpreted as requiring only a test of the subjective state of mind of the physicians conducting the professional review action, the Committee changed to a more objective ‘reasonable belief standard. The Committee intends that this test will be 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. Austin v. McNamara, 979 F.2d 728, 734 (9th Cir.1992) (quoting H.R.Rep. No. 903, 99th Cong., 2d Sess. 10, reprinted in 1986 Code Cong. & Admin.

News 6287, 6392-93) (emphasis added); Bryan, supra, 33 F.3d at 1323 . It is also evident from the legislative history that Congress intended that defendants in suits involving peer review immunity issues be allowed to file motions to resolve those issues “as early as possible in the litigation process.” Id. at 1332 (footnote omitted); “[The Committee intends that] ‘these provisions allow defendants to file motions to resolve the issue of immunity in as expeditious a manner as possible.’ ” Id. (quoting H.R.Rep. No. 903, 99th Cong., 2d Sess. 12, reprinted in 1986 U.S.C.C.A.N. 6394).

B. Dr. Goodwich contends that Sinai failed to satisfy the standards in § 11112(a) of the HCQIA, relating to the reasonable ¹⁹⁹ ness of its belief that the March 8, 1993 professional review action 16 was taken in furtherance of quality health care and was warranted by the facts known to it. 17 He submits further that § 11112(a)’s placement of the burden of proof on the physician to “rebut[ ] by a preponderance of the evidence” that the review action was unreasonable based on one of the four statutory elements, in the summary judgment context, imposes on him an improper burden. As he sees it, a motion for summary judgment predicated on the immunity established by ²⁰⁰ the HCQIA should be reviewed in accordance with Maryland summary judgment procedure. Simply put, Dr. Goodwich maintains that the burden he has to overcome on summary judgment is one of production, not one of persuasion. He thus concludes that, at the summary judgment stage of the trial, he must present sufficient evidence to allow an issue material to his case to go the jury, rather than meet the ultimate burden of proving that issue by a preponderance of the evidence.

Indeed, Dr. Goodwich asserts that the trial judge needed only to determine whether, when viewed in the light most favorable to him, there was sufficient evidence on the basis of which reasonable jurors could differ regarding whether he satisfied his burden of persuasion. Moreover, he claims that the Court of Special Appeals erroneously viewed the evidence he presented based on the preponderance standard. Goodwich, supra, 103 Md. App. at 353 , 653 A.2d at 546-47 . In Dr. Goodwich’s view, he met his burden of production by providing sufficient evidence to support the factual inference that Sinai’s purpose in abridging his privileges was to avoid litigation, not “in the reasonable belief that the action was in the furtherance of quality health care.” Specifically, Dr. Goodwich notes two letters sent to him by Dr. Goldstein which, in the context of discussing second opinions for high risk patients, reference a concern about Dr. Goodwich’s lack of board certification creating a potential liability exposure for the hospital.

He further maintains that he met his burden of production by providing sufficient evidence to support the factual inference that Sinai made no “reasonable effort to obtain the facts of the matter.” In this regard, Dr. Goodwich submits that there was sufficient probative evidence that Drs. Taylor and Currie continued the second opinion requirement started by Dr. Goldstein “without any meaningful evaluation of his ability to provide patient care[,]” and, indeed, “deliberately refused to investigate the underlying facts.” ²⁰¹ In similar fashion, Dr. Goodwich contends that there was probative and admissible evidence that the MEC took action against him without any meaningful review of the patient care he provided and that the Hearing Committee simply “rubber-stamped” the MEC’s decision. He concludes that Dr. Currie, the MEC, and the Hearing Committee could not have decided to abridge his privileges for reasons of “patient welfare” without having reviewed any patient charts. He also points to the testimony his expert witness, Dr. Theodore M. King, former Chief of the Obstetrics and Gynecology Department at The Johns Hopkins Hospital, gave at the April hearing, as evidence that he was not a threat to patient welfare.

Finally, Dr. Goodwich asserts that he met his burden of production by providing sufficient evidence to support the factual inference that Sinai’s action was not taken “in the reasonable belief that [it] was warranted by the facts known.” In this regard, he argues that there were material factual issues relative to whether there was “any reasonable concern for patient welfare on the part of the hospital administration and the successive chiefs of the OB-GYN department at Sinai when Dr. Goodwich’s privileges were abridged.” He concludes that “there was no admissible evidence that the second opinions were necessary or that there was any patient mismanagement.” 18 ²⁰² Dr. Goodwich claims that “[i]n many of the patient cases identified by Sinai as supporting the abridgement of privileges, second opinions were in fact part of the file.” He further maintains that the hospital made no effort to discover the facts underlying the absence of a written second opinion in the remaining patient cases to determine if patient welfare was jeopardized, and that the Hearing Committee neither asked for nor heard evidence to establish that he had deviated from accepted standards of care in any specific case. As his last contention, Dr. Goodwich asserts that Sinai, in addition to lack of entitlement to federal immunity, also is not entitled to immunity under the provisions of Health Occupations Article of the Maryland Code (1981, 1994 Repl.Vol., 1995 Cum.Supp.), §§ 14-501(f) and 14-504(c). 19 This is so, he maintains, because his evidence regarding bad faith on Sinai’s part, specifically that of Dr. Goldstein, would be relevant to state immunity, thereby preventing the entry of summary judg ²⁰³ ment. 20 C. Not unexpectedly,Sinai views matters quite differently. It contends that, as a defendant seeking HCQIA immunity in a summary judgment context, it need only show that its actions fall within the statutory definition of a “professional review action” under 42 U.S.C. § 11151 (9). Having made the requisite showing, Sinai claims that it qualifies for the presumptive immunity afforded by the HCQIA.

Therefore, it disputes Dr. Goodwich’s contention that it has the burden, at the summary judgment stage, of producing evidence demonstrating the reasonableness of its actions. On the contrary, it claims that upon showing that the March 8 abridgement was a peer review action, the four immunity elements in § 11112(a) are presumed to exist, and it is Dr. Goodwich who, in order to survive summary judgment, must rebut the statutory presumption by a preponderance of the evidence. 21 Sinai maintains that it temporarily abridged Dr. Goodwich’s privileges because he repeatedly failed to obtain second opinions that were reasonably necessary for it to insure quality patient care. It further maintains that the abridgement process represented a reasonable effort to consider all relevant facts, complied with all applicable hospital Medical Staff ByLaws, and afforded Dr. Goodwich an opportunity to participate and present any information he desired. ²⁰⁴ It also claims that, given the presumptive immunity it enjoys, the proper measure of the reasonableness of its actions is whether Dr. Goodwich “submitted any admissible evidence that would permit a reasonable jury to conclude that other reasonable hospitals would not have acted to abridge a physician’s privileges under similar circumstances.” It concludes that he failed to submit such evidence, as both the trial court and the Court of Special Appeals determined. Goodwich, supra, 103 Md.App. at 352 , 653 A.2d at 546 .

III

The standard of review for a grant of summary judgment is whether the trial court was legally correct. Hartford Insurance Co. v. Manor Inn, 335 Md. 135, 144 , 642 A.2d 219, 224 (1994); Gross v. Sussex, 332 Md. 247, 255 , 630 A.2d 1156, 1160 (1993); Beatty v. Trailmaster, 330 Md. 726, 737 , 625 A.2d 1005, 1011 (1993); Brewer v. Mele, 267 Md. 437, 441 , 298 A.2d 156, 159 (1972). Toward this end, we must, in this case of first impression, decide the appropriate burden of production for a non-movant in a HCQIA summary judgment proceeding — that is to say, determine how one rebuts the statutory presumption that a professional review action was objectively reasonable. 22 ²⁰⁵ While it is well-settled that we must apply the substantive federal law governing a case such as this, it is equally well-settled that “[t]he law of the forum governs procedural matters.” Rein v. Koons Ford, 318 Md. 130, 147 , 567 A.2d 101, 109 (1989); Vernon v. Aubinoe, 259 Md. 159, 162 , 269 A.2d 620, 621 (1970) (“Maryland law ... controls as to the inferences to be drawn from the evidence, the sufficiency of the evidence, the inferences from it to go to the jury and other procedural matters.”). Summary judgment practice in this state is governed by Maryland Rule 2-501.

It states, in relevant part, “[t]he court shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to summary judgment as a matter of law.” Rule 2-501(e). 23 Summary judgment is not a substitute for trial. Stated differently, its purpose is not to try the case or resolve ²⁰⁶ factual disputes. Hartford Insurance Co., supra, 335 Md. at 144 , 642 A.2d at 224 ; Coffey v. Derby Steel Co., 291 Md. 241, 247 , 434 A.2d 564, 567-68 (1981); Berkey v. Delia, 287 Md. 302, 304 , 413 A.2d 170, 171 (1980); Salisbury Beauty Schools v. State Board of Cosmetologists, 268 Md. 32, 40 , 300 A.2d 367, 373 (1973). Rather, the procedure is designed to determine whether a factual controversy exists requiring a trial.

Hartford Insurance Co., supra, 335 Md. at 144 , 642 A.2d at 224 ; Beatty, supra, 330 Md. at 737 , 625 A.2d at 1011 ; Foy v. Prudential Insurance Co., 316 Md. 418, 422 , 559 A.2d 371, 373 (1989); Metropolitan Mortgage Fund v. Basiliko, 288 Md. 25, 28 , 415 A.2d 582, 584 (1980); Lynx, Inc. v. Ordnance Products, 273 Md. 1, 7 , 327 A.2d 502, 508 (1974); Brewer v. Mele, 267 Md. 437, 442 , 298 A.2d 156, 160 (1972) (quoting Lipscomb v. Hess, 255 Md. 109, 118 , 257 A.2d 178, 182-83 (1969)); see also Bond v. Nibco, 96 Md.App. 127, 134-35 , 623 A.2d 731, 735 (1993). Thus, in keeping with Maryland law, the trial judge is not allowed to weigh evidence. This principle is also expressed in federal case law. See, e.g., Anderson v. Liberty Lobby, 477 U.S. 242, 249 , 106 S.Ct. 2505, 2511 , 91 L.Ed.2d 202, 212 (1986) (“[A]t the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”).

It is also true that, under Maryland law, the nonmovant bears no burden of proof at the summary judgment stage. Rather, after the moving party has produced sufficient evidence in support of summary judgment, the non-movant “must demonstrate that there is a genuine dispute of material fact by presenting facts that would be admissible in evidence.” Gross, supra, 332 Md. at 255 , 630 A.2d at 1160 ; see also Beatty, supra, 330 Md. at 737 , 625 A.2d at 1011 . “A material fact is a fact the resolution of which will somehow affect the outcome of the case.” King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608, 614 (1985) (citing Lynx, supra, 273 Md. at 7-8 , 327 A.2d at 509 ). ²⁰⁷ In addition, those facts must be presented “in detail and with precision,” general allegations are insufficient. Gross, supra, 332 Md. at 255 , 630 A.2d at 1160 ; Beatty, supra, 330 Md. at 738 , 625 A.2d at 1011 ; see also Lynx, supra, 273 Md. at 7-8 , 327 A.2d at 509 . Finally, in determining whether there is a genuine dispute of material fact, the court must resolve all inferences against the moving party.

Hartford, supra, 335 Md. at 145 , 642 A.2d at 224 ;, Gross, supra, 332 Md. at 256 , 630 A.2d at 1160 ; King, supra, 303 Md. at 111 , 492 A.2d at 614 ; Coffey, supra, 291 Md. at 246 , 434 A.2d at 567 ; Berkey, supra, 287 Md. at 304-05 , 413 A.2d at 171 ; Leonhart v. Atkinson, 265 Md. 219, 220 , 289 A.2d 1, 2 (1972). In Maryland, when there is a genuine issue of material fact, the evidence, or the inferences deducible therefrom, is sufficient to permit the trier of fact to arrive at more than one conclusion; consequently, the moving party is not entitled to judgment as a matter of law. Because the applicable standard in civil cases is preponderance of the evidence, see Beatty, supra, 330 Md. at 738-39 , 625 A.2d at 1011 ; Bond, supra, 96 Md.App. at 135 , 623 A.2d at 735 ; Seaboard Surety v. Kline, Inc., 91 Md.App. 236, 244 , 603 A.2d 1357, 1360 (1992), when the evidence the non-movant presents, or the inferences from that evidence, demonstrate that there is a genuine issue of material fact, it is at least arguable that he or she has met that burden. In other words, the generation of a genuine dispute of material fact is, in this context, the equivalent of meeting a preponderance of the evidence standard at trial.

We thus conclude that the proper summary judgment standard in this case is whether Dr. Goodwieh produced sufficient evidence of the existence of a genuine dispute as to the material fact of whether Sinai was entitled to the qualified immunity prescribed by the HCQIA.

IV

We shall now review seriatim Dr. Goodwich’s claims that he has produced sufficient evidence to support the factual inference that Sinai failed to satisfy the standards of ²⁰⁸ § 11112(a). In this regard, we are mindful that, in accordance with the Act, “the defendants’ [professional review] action is immune if the process was undertaken in the reasonable belief that quality health care was being furthered.” Imperial v. Suburban Hospital Association, Inc., 37 F.3d 1026, 1030 (4th Cir.1994). We are also mindful that “[t]he standard is an objective one which looks to the totality of the circumstances.” Id. Dr. Goodwich first contends that Sinai’s purpose in abridging his privileges was to insulate it from lawsuits, not to further patient welfare as § 11112(a)(1) requires.

He points to language in the June 29, 1988 and March 15, 1991 letters, in which Dr. Goldstein referred not only to obtaining second opinions but also to the potential for litigation against Sinai, as evidence that the second opinion requirement was implemented out of Dr. Goldstein’s fear of litigation, rather than any legitimate concern for patient welfare. To Dr. Goodwich it is extremely relevant that, in these letters, “[n]ot one word was mentioned about his actions potentially jeopardizing patients.” This argument is specious. Even if the second opinion requirement was initiated out of fear of litigation, rather than patient care concerns, neither evidence of that fact nor the inferences from such evidence rebuts the presumption of reasonableness the MEC’s abridgement action enjoys. This evidence may support an inference of bad faith on Sinai’s part; however, as we have already pointed out, what is relevant here is the objective reasonableness of the hospital’s actions, not its subjective intent or motivation.

In sum, Dr. Goodwich’s reliance on these two letters improperly focuses on what is more accurately characterized as the hospital’s preliminary conduct, while failing to address the basis for Sinai taking the professional review action that it did; this focus does not address, not to mention rebut, the evidence that was before the MEC when it abridged Dr. Goodwich’s hospital privileges. Moreover, while it is true that these letters reference concern about litigation, it is equally true that these same letters address patient care issues. In fact, the March 15 ²⁰⁹ letter characterizes Dr. Goodwich’s conduct in caring for a patient as “a remarkable deviation from the standard of care____” Also, and as we have seen, the letters were preceded by years of discussion and correspondence on patient