Synergy - July/August 2013 - 12

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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	the	facts	and	after	meeting	the	
requirement	of	paragraph	(3).19	
These	standards	are	presumed	to	be	met	for	
the	purpose	of	establishing	the	immunity.	
The	burden	is	upon	the	person	challenging	
the	professional	review	action	to	prove	
that	one	of	these	four	requirements	were	
not	satisfied	so	that	the	professional	review	
body	is	no	longer	afforded	immunity	from	
damages	under	HCQIA.20	
Ryskin	asserted	the	defendants	failed	in	
meeting	their	obligations	to	be	shielded	
from	liability	as	it	related	to	the	Peer	
Review	process,	the	Credentials	Committee	
recommending	Ryskin	not	be	reappointed,	
and	the	MEC	reappointing	and	renewing	
Ryskin’s	privileges	for	three	months	rather	
than	the	customary	two-year	appointment	
period.	In	analyzing	the	actions	taken	in	
these	three	instances,	the	court	reviewed	
if	these	were	professional	review	activities	
versus	professional	review	actions	under	
HCQIA.21	
In	its	analysis	of	the	Peer	Review	process,	
the	court	held	Ryskin	had	shown	no	

These standards are presumed to be met for
the purpose of establishing the immunity.
evidence	to	demonstrate	a	question	of	fact	
that	the	investigation	of	Ryskin	constituted	
a	professional	review	action	rather	than	just	
an	activity.	Therefore,	the	court	granted	the	
defendants’	motion	for	qualified	immunity	
under	HCQIA	as	it	related	solely	to	the	
activities	of	the	Peer	Review	Committee.	
The	defendants	provided	evidence	the	
activities	were	fact-finding	in	nature	and	
the	subsequent	consideration	of	what	was	
found	through	such	investigation.	The	
stated	reason	for	the	denial	of	Ryskin’s	
reappointment	was	his	incorrect	answer	
to	a	question	on	the	reappointment	
application.22	There	was	no	ultimate	action	
shown	from	these	activities.	
As	for	the	Credentials	Committee’s	
recommendation	on	reappointment,	
the	defendants	asserted	the	Credentials	
Committee’s	purpose	was	to	gather	
information	and	make	recommendations	
to	the	MEC	for	appointment	and	
reappointment.23	Ryskin	provided	evidence	
that	Defendant	Nix,	in	serving	on	the	
Credentials	Committee,	failed	to	provide	
adequate	notice	of	the	process	or	for	Ryskin	
to	participate	in	the	process.24	While	it	was	
determined	the	Credentials	Committee	
was	a	professional	review	body,	Ryskin	had	
provided	sufficient	evidence	that	the	
second,	third,	and	fourth	standards	
of	42	U.S.C.	§	11112(a)	had	not	
been	met	and	the	court	denied	
defendants’	motion	as	it	
relates	to	HCQIA.	
As	to	the	third	action	
regarding	the	MEC	
granting	Ryskin	
reappointment	and	
privileges	for	a	
three-month	period	
rather	than	the	
customary	two-year	
period,	the	court	
held	this	was	a	
professional	review	
action.	The	court	
then	considered	if	
Ryskin	provided	any	
evidence	to	show	if	

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SYNERGY July /A ugust 2013

there	was	a	question	of	fact	whether	the	
four	standards	in	42	U.S.C.	§	11112(a)	
had	been	met.	Ryskin	asserted	that	he	was	
notified	of	the	reappointment	decision	
nearly	two	weeks	after	it	was	made	and	
four	days	after	Banner	had	approved	the	
decision,	and	the	Defendants	did	not	
controvert	this	evidence.	Therefore,	the	
court	denied	Defendants’	motion	since	
Defendants	Nix,	Soper,	Bonelli,	Elliff,	Joy,	
and	Banner	failed	to	meet	the	third	and	
fourth	standards	of	42	U.S.C.	§	11112(a).25	

The Defendants’ Motion
for Summary Judgment for
Qualified Immunity Under
CPRA Standards
CPRA	also	provides	for	a	qualified	immunity	
to	participants	in	professional	review	actions	
so	as	to	comply	with	HCQIA.26	It	is	similar	
to	HCQIA	except	that	the	CPRA	does	not	
presume	that	a	professional	review	action	
is	taken	for	the	purpose	of	assuring	quality	
and	patient	safety	like	HCQIA	does.27	The	
court	notes	the	CPRA	contains	two	parts,	
the	first	of	which	allows	for	immunity	
from	suit	under	Colorado	law28	and	the	
second	as	to	immunity	from	damages	under	
HCQIA.29	In	the	defendants’	motion,	they	
pled	facts	utilizing	HCQIA	presumption	
as	to	quality	and	patient	safety.	They	did	
not	plead	any	facts	to	prove	these	two	
purposes	as	required	under	CPRA	because	
it	does	not	incorporate	these	presumptions.	
Without	meeting	this	pleading	burden,	the	
court	found	that	under	Part	2	of	CPRA,	
Defendants	Nix,	Soper,	Elliff,	Joy,	and	
Banner	are	granted	qualified	immunity	
as	it	relates	to	the	peer	review	process	
but	not	on	the	Credentialing	Committee	
recommendations	and	the	MEC	actions	as	to	
reappointment.30	
As	for	Part	1	of	CPRA,	the	immunity	criteria	
depends	upon	the	status	of	those	who	are	
claiming	such	status.31	All	the	defendants	
filed	the	motion	for	summary	judgment	
for	qualified	immunity.	Banner	is	the	
governing	board;	Nix,	Soper,	Bonelli,	Elliff,	
and	Joy	were	participants	not	related	to	
the	governing	board.	It	is	undisputed	that
Synergy - July/August 2013

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