Austin v. McNamara

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." The appellate court affirmed a grant of summary judgment to the defendant hospital and doctors affiliated with it.

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).