Austin v. McNamara

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In Austin v. McNamara, 979 F.2d 728 (9th Cir. 1992), the Court of Appeals for the Ninth Circuit interpreted HCQIA to bestow immunity on a hospital regardless of its "animosity," "hostility," or "bad faith" in revoking a physician's privileges at the hospital. The Court held that "the test [for immunity under §11112(a)] is an objective one."[1]

This precedent has been widely followed to exclude evidence of bad faith from lawsuits against hospitals for sham peer review.

This precedent was distinguished by Clark v. Columbia/HCA Info. Servs., 117 Nev. 468, 477-78, 25 P.3d 215, 2001 Nev. LEXIS 46, 117 Nev. Adv. Rep. 42 (2001), as follows:

The presumption of immunity has been interpreted by the federal courts almost exclusively in favor of finding immunity for peer review board members. [citing Austin as an example] In fact, in only two cases have federal courts reversed an order of summary judgment based on immunity because the physician demonstrated by a preponderance of the evidence that the board failed to give appropriate fair notice and procedures in accordance with § 11112(a)(3) - Islami v. Covenant Medical Center, Inc. and LeMasters v. Christ Hospital. In addition, in Brown v. Presbyterian Healthcare Services, the Tenth Circuit upheld a district court's finding that the peer review board lacked immunity because the board only investigated two patient charts before deciding to revoke the physician's privileges, which was not a reasonable effort to obtain facts under § 11112(a)(4). Moreover, in Brown the board reported false findings to the National Practitioner Data Bank pursuant to § 11137(c).


  1. 979 F.2d at 734.