TIMOTHY A. PATRICK, PETITIONER, V. WILLIAM M. BURGET, ET AL. No. 86-1145 In the Supreme Court of the United States October Term, 1987 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Brief for the United States as Amicus Curiae TABLE OF CONTENTS Questions presented Statement Discussion Conclusion QUESTIONS PRESENTED 1. Whether the "state action doctrine" bars a doctor's antitrust action against competing doctors who allegedly used a hospital peer review process in bad faith to restrain competition, when (1) the State mandates medical staff peer review in order to identify doctors whose performance is substandard and (2) (a) hospitals are required to examine peer review procedures, (b) hospitals are required to report termination or restriction of hospital privileges to the state Board of Medical Examiners, and (c) limited judicial review of adverse privilege decisions may (or may not) be available. 2. Whether the conduct of private physicians in connection with proceedings of the state Board of Medical Examiners is properly admissible as evidence of those physicians' intent in invoking the peer review process at a private hospital or is actionable as part of a conspiracy in restraint of trade involving such peer review proceedings. This brief is submitted in response to the Court's order inviting the Solicitor General to express the views of the United States. STATEMENT 1. Petitioner is a surgeon practicing in Astoria, Oregon, a city of 10,000 people. Respondents are physicians who are partners in the Astoria Clinic. During the relevant time periods, a majority of the staff members at Columbia Memorial Hospital (CMH), Astoria's only hospital, were employees or partners of the Astoria Clinic. Petitioner, who after his initial year as an employee had declined an invitation to join the Astoria Clinic as a partner, had an independent practice in competition with some of the doctors at the Clinic. Pet. App. 2a-3a. In late 1979, respondent Boelling, a Clinic physician, complained to the hospital medical staff about an incident in which Boelling said that one of petitioner's patients was left in the care of another physician, who then left the patient unattended (Pet. App. 4a-5a). This complaint, along with other cases allegedly handled by petitioner, was referred to the state Board of Medical Examiners (BOME), whose three-member investigative committee was chaired by respondent Russell, another Clinic physician (id. at 5a). The BOME issued a letter of reprimand, but that letter was retracted when petitioner sought judicial review (id. at 5a-6a). In 1981, at the initiation of respondent Harris, another Clinic physician, the peer review committee at CMH began proceedings to terminate petitioner's hospital privileges (Pet. App. 7a). Respondent Boelling served as chairman of the committee. He had earlier complained about petitioner to the BOME and had in that forum testified against petitioner concerning some of the cases that were now before the committee. Eventually, petitioner resigned from the hospital staff rather than risk termination. Id. at 7a-8a. /1/ 2. Petitioner filed suit against the Astoria Clinic and its physicians, alleging violations of Sections 1 and 2 of the Sherman Act, 15 U.S.C. 1 and 2, and bringing related state claims (Pet. App. 8a). Petitioner contended that respondents' primary motive, in conducting the peer review process, was to reduce or eliminate competition from petitioner rather than to improve patient care; respondents vigorously denied this. The jury was instructed as to the Section 2 claim that it should find for respondents if it determined that they were "motivated by concerns over provision of health care to the community" (Tr. 2922). The jury, however, returned a verdict against Russell, Boelling, and Harris on petitioner's Section 1 claim and against the Clinic on the Section 2 claim. The jury awarded petitioner damages of $650,000, which the district court trebled, on his antitrust claims plus $20,000 compensatory and $90,000 punitive damages on the state law claims. Pet. App. 8a. 3. The court of appeals reversed. /2/ It applied the two-prong test articulated in California Retail Liquor Dealers Ass'n v. Midcal Aluminum, Inc., 445 U.S. 97, 105 (1980), and applied to private conduct in Southern Motor Carriers Rate Conference, Inc. v. United States, 471 U.S. 48, 57 (1985). Under that test, the "state action doctrine" immunizes private conduct from challenge under the antitrust laws if (1) the private conduct is undertaken pursuant to a clearly articulated state policy to displace competition, and (2) there is active supervision of the private conduct by the state. The court held that both parts of this test were satisfied here and therefore ruled that, even if respondents had misused the hospital peer review process to disadvantage a competitor rather than to improve patient care, the state action doctrine shielded their conduct from antitrust scrutiny (Pet. App. 9a, 12a-13a, 17a). The court of appeals concluded that the State had clearly articulated a policy to limit competition because "Oregon, by compelling physicians to review their competitors, affirmatively has expressed a policy to replace pure competition with some regulation" (Pet. App. 10a). It noted that Oregon law requires hospitals to "insure that procedures exist for granting or restricting privileges of the medical staff and that the medical staff is organized in such a manner as effectively to review one another's professional practices at the facility to reduce morbidity and mortality and to improve patient care" (Pet. App. 9a-10a (citing Or. Rev. Stat. Sections 441.030, 441.055(3)(c) and (d) (1985))). Therefore, the court said, Oregon has shown an intent to limit consumer choice as to physicians. Pet. App. 11a-12a. The court of appeals also concluded that Oregon actively supervises the private parties who carry out peer review, thereby satisfying the second prong of the Midcal test. Active supervision is demonstrated, it held, by "the combination of" a requirement that hospitals promptly report privilege terminations to the BOME, a requirement that health care facilities regularly review their privilege termination procedures, and the possibility of judicial review of adverse privilege decisions in the Oregon state courts. Pet. App. 10a-11a. The court of appeals determined that Russell's activities as a member of the BOME also were exempt from antitrust liability under the state action doctrine. In its view, Russell's activities were actions within the scope of a state official's authority, taken pursuant to express state policy, and were contemplated by the State. Pet. App. 12a. Finally, acknowledging that there was substantial evidence that respondents had acted in bad faith, the court found unpersuasive petitioner's contention that the state had articulated a policy only in favor of good-faith peer review (Pet. App. 12a-13a). Noting that a state rarely, if ever, authorizes bad-faith actions "as such," the court of appeals refused to inquire into the motives of peer reviewers in determining whether the state action exemption applied (id.at 13a-14a). /3/ DISCUSSION 1. The first question presented -- whether the state action doctrine immunizes respondents' actions in connection with the hospital peer review process -- merits review by this Court. /4/ The court of appeals' interpretation of the "active supervision" prong of the Midcal test misapplies this Court's precedents and would exempt from the antitrust laws a wide variety of private conduct that cannot, on the basis of the sort of showing that was made here, be attributed to the state. /5/ Since there are few decisions of this Court discussing "active supervision," the weakening of this portion of the Midcal test is of considerable importance in a variety of contexts. In addition, guidance from this Court on that subject would be of particular use to the parties and courts in hospital peer review cases. The issue in this case is not, as amici contend (Br. in Opp. of Joint Comm'n on Accreditation of Hospitals et al. 4-5), rendered unimportant to hospital peer review cases by the passage of the Health Care Quality Improvement Act of 1986, Pub. L. No. 99-660, Tit. IV, 100 Stat. 3784-3794 (1986 Act). Medical peer review is an important process, /6/ and the 1986 Act protects that process from antitrust damage liability in cases covered by the statute. But the 1986 Act in no way displaces the "state action" doctrine. /7/ On the one hand, the 1986 Act is not the exclusive source of immunity for peer review activities: to the contrary, it expressly provides that it does not change other "immunities under law" (Section 415(a), 100 Stat. 3787). On the other hand, the 1986 Act was not specifically designed to protect state prerogatives and does not itself bar the federal antitrust court from scrutinizing the defendant's conduct or from imposing liability if the plaintiff establishes by a preponderance of the evidence that the peer review action does not meet the federal standards specified in the 1986 Act, including the requirement that the action has been taken "in the reasonable belief that the action was in the furtherance of quality health care" (Section 412(a), 100 Stat. 3785-3786). In sum, in cases where peer review is undertaken pursuant to a state program, the question whether the private conduct constituted "state action" will -- and should -- remain the appropriate threshold inquiry, and the state action doctrine will remain pertinent to a large number of hospital peer review cases. In addition, of course, the 1986 Act does not in any way limit the impact of the decision below on peer review cases outside the health care area. 2. On the merits, we believe that the decision of the court of appeals is incorrect. The state action doctrine "represents an attempt to resolve conflicts that may arise between principles of federalism and the goal of the antitrust laws, unfettered competition in the marketplace" (Southern Motor Carriers, 471 U.S. at 61). Accordingly, the two-prong Midcal test is designed to ensure that a challenged restraint of trade is immune from antitrust scrutiny only if it is the product of state regulation and not merely the product of private anticompetitive interests. A restraint of the former type is immune because of "the assumption that Congress, in enacting the Sherman Act, did not intend to compromise the States' ability to regulate their domestic commerce" (Southern Motor Carriers, 471 U.S. at 56). A restraint of the latter type is not immune because a state may not give immunity to private parties merely by "authorizing them to violate (the Sherman Act), or by declaring that their action is lawful." Parker v. Brown, 317 U.S. 341, 351 (1943). Respondents failed to demonstrate the "active supervision" by the State of Oregon that would make their actions fairly attributable to the State. /8/ Thus, the court of appeals erred in finding the alleged anticompetitive actions in this case to be the product of state regulation, since the second prong of the Midcal test was not satisfied, and the judgment of the court of appeals is incorrect whether or not the first prong was satisfied. Whether the first prong is satisfied -- i.e., whether the State "clearly intend(ed) to displace competition in (this) field with a regulatory structure" (Southern Motor Carriers, 471 U.S. at 64) -- is a more difficult question that need not be resolved in order for this Court to reverse. a. This case involves an attempt by private parties, not governmental units, to achieve immunity from Sherman Act liability. As this Court has observed, "(w)here a private party is engaging in the anticompetitive activity, there is a real danger that he is acting to further his own interests, rather than the governmental interests of the State." Town of Hallie v. City of Eau Claire, 471 U.S. 34, 47 (1985); cf. id. at 45. It is for that reason that an "active state supervision" requirement is imposed, as "one way of ensuring that the actor is engaging in the challenged conduct pursuant to state policy" (id. at 46). Immunity from the federal antitrust laws under the state action doctrine is warranted only if the state provides, by one means or another, sufficient supervision to offer realistic assurance that, in the judgment of the state, private parties' exercise of discretion in particular instances furthers a state regulatory policy. An essential element of this second prong of the Midcal test is that the state exercise ultimate control over the anticompetitive restraint. As is pointed out in Midcal, 445 U.S. at 104, this Court in the seminal state action case, Parker v. Brown, supra, stressed that the marketing plan proposed by California raisin growers did not take effect unless and until it was approved by a state board. Similarly, in Southern Motor Carriers, 471 U.S. at 51, the Court noted that the state public service commissions "have and exercise ultimate authority and control over all intrastate rates." Most recently, in 324 Liquor Corp. v. Duffy, No. 84-2022 (Jan. 13, 1987), slip op. 9 n.7, the Court held that certain forms of state "monitoring" did not constitute active supervision because they did not "exert() any significant control over retail liquor prices or mark-ups." See also 1 P. Areeda & D. Turner, Antitrust Law Paragraph 213b, at 73 (1978) ("The key question here is whether the operative decisions about the challenged conduct are made by public authorities or by private parties themselves. When the latter is the case, there is insufficient public control to confer antitrust immunity."). Respondents have not demonstrated that Oregon has retained "ultimate authority and control" (see Southern Motor Carriers, 471 U.S. at 51) over medical staff peer review decisions or privilege decisions by hospitals. The court of appeals held that "the combination of (1) internal review by the hospitals, (2) review by the BOME, and (3) review by the courts constitutes adequate supervision" (Pet. App. 11a). Neither the court nor respondents have demonstrated, however, that as part of those three procedures any state official reviewed -- or even could have reviewed -- the results of this or any other private decision regarding hospital privileges to determine whether state policy had been followed and to correct any abuses. (1) The statutory requirement that, as a condition of maintaining their licenses, hospitals regularly review their peer review procedures for conformity with applicable law (see Or. Rev. Stat. Sections 441.030, 441.055(3)(c) (1985); Br. in Opp. App. 14-17) is entirely irrelevant to active supervision by the State. The hospital is a private actor, not a representative of the State. Somewhat more relevant, although not discussed by the court of appeals, are the state Health Division's general supervisory and investigatory powers over all health matters, including the licensing of hospitals and the enforcement of health policies (see Or. Rev. Stat. Sections 431.110(1), 431.120(1), 431.140(1), 431.150, 441.015, 441.025, 441.055 (1985); Br. in Opp. App. 3-7, 12-17). The Health Division has the power to investigate and institute enforcement proceedings to restrain violations of public health laws, which presumably would include the statutory requirement that hospitals establish peer review procedures and review them regularly for compliance with state law (Or. Rev. Stat. Sections 431.150, 431.155 (1985); Br. in Opp. App. 6-9). The Health Division may also deny, suspend, or revoke a health care facility's license for failure to comply with that requirement (Or. Rev. Stat. Section 441.030(2) (1985); Br. in Opp. App. 14). Even if the Health Division has oversight responsibility with respect to the promulgation of peer review procedures by hospitals, that is not the same as the power to supervise the peer review process: there is no evidence that the Health Division has any power to overturn any peer review decision, no matter how far it departs from the State's policy. /9/ In general (and in this case), it is the private parties' actual decisions to exclude a doctor, and not the procedures by which those decisions are made, that are alleged to violate the antitrust laws. See, e.g., Midcal, 445 U.S. at 105-106 (emphasizing that California did not establish prices or review the reasonableness of particular price schedules as a reason for determining that it did not actively supervise the system of price maintenance required by statute). (2) As the court of appeals noted, Oregon hospitals are required by statute to notify the BOME promptly of a decision to terminate privileges (see Or. Rev. Stat. Section 441.820 (1985); Br. in Opp. App. 23-24). There is no indication, however, that the BOME has any authority to determine whether the termination of privileges was proper or to remedy any abuse. All that the statute suggests on its face is that the BOME will determine whether additional action on its part, such as revocation of a physician's license to practice medicine (see Or. Rev. Stat. Section 677.190 (1985)), is warranted. There is no indication that the BOME has statutory authority to overturn hospital termination decisions. Nor have respondents shown that the BOME in practice undertakes any review or that it has ever asserted the authority to reverse the action of a hospital in a termination proceeding. Cf. Feminist Women's Health Center, Inc. v. Mohammad, 586 F.2d 530, 544-545 (5th Cir. 1978), (similar reporting provision in Florida's peer review statute would allow, but not require, the state medical board to take independent disciplinary action against a physician disciplined by peer review), cert. denied, 444 U.S. 924 (1979). (3) Finally, respondents have not established that Oregon activity supervises privilege termination proceedings through judicial review. As an initial matter, it is not even clear that Oregon law affords any judicial review at all for physicians whose privileges have been terminated by a private hospital. There is no statutory provision for judicial review, and we are aware of no case in which an Oregon court has held that there is judicial review. The cases that respondents (and the court of appeals) cite do not so hold. Straube v. Emmanuel Lutheran Charity Bd., 287 Or. 375, 383, 600 P.2d 381, 386 (1979) ("We have assumed (but not decided) for the purpose of this case that plaintiff is entitled to 'fair procedure' as a common law right."), cert. denied, 445 U.S. 966 (1980); Huffaker v. Bailey, 273 Or. 273, 275, 540 P.2d 1398, 1399 (1975) ("In view of our conclusion that petitioner cannot prevail even assuming the case is properly before us, we find it unnecessary to decide these interesting questions (of reviewability). Therefore, we assume, but do not decide, that the hospital's decisions are subject to review by mandamus * * * ."). Even assuming that state law provides some sort of remedy in the state courts, however, respondents have made no showing that the kind of judicial review that would be undertaken would constitute active supervision by the State. /10/ Respondents have not demonstrated, or even seriously suggested, that petitioner would be entitled to an evidentiary hearing in a state court on his claim that he was denied a fair hearing. Nor have they shown that the state court would review the merits of the termination of privileges to determine whether it accorded with substantive state policy -- in this case, for example, whether the termination served the State's policy of maintaining high standards of patient care rather than respondents' private interests. The available evidence suggests that, if Oregon courts were to review termination decisions at all, the review would be deferential and nonsubstantive. The Straube court indicated that a court "should (not) decide the merits of plaintiff's dismissal" and that "(i)t would be unwise for a court to do more than to make sure that some sort of reasonable procedure was afforded and that there was evidence from which it could be found that plaintiff's conduct posed a threat to patient care" (287 Or. at 384, 600 P.2d at 386). The Huffaker court advocated "judicial restraint" and declared that it would not invalidate a decision "made in good faith and supported by an adequate factual basis" (273 Or. at 280-281, 540 P.2d at 1401). Such deferential review would not result in a determination that substantive state policy was being followed and hence would not make the actions of private parties actions of the State. In the absence of any indication that an Oregon court would judge respondents' conduct against the State's substantive standards, there is no reason to treat respondents' conduct as the State's rather than their own. See Town of Hallie, 471 U.S. at 46-47. /11/ In sum, when a state actively supervises private parties' exercise of discretin under peer review procedures, and also meets the "clear articulation" test, the state action doctrine makes it unnecessary to superimpose on the state's active supervision the kind of fact-specific inquiry that federal courts are required by the 1986 Act to undertake in order to ensure that immunized conduct serves the policy of maintaining high standards of care. /12/ If the decision of the court of appeals were left undisturbed, however, private conduct could be immunized from antitrust scrutiny, without regard to the 1986 Act, even though no state official had exerted any control over the conduct in question. Such a result would "frustrat(e) the national policy in favor of competition" (Southern Motor Carriers, 471 U.S. at 57) without serving the articulated policy of the state. b. The question whether Oregon's mandating peer review constitutes "clear articulation" under the first prong of the Midcal test is more difficult. It is entirely plausible that Oregon intended to displace some aspects of competition with a scheme of professional self-regulation, upon which scrutiny by a federal antitrust court -- and the threat of treble damages -- would be an unwarranted and inappropriate intrusion. But it is also entirely plausible that Oregon assumed that the antitrust laws would remain fully applicable and wished to encourage only conduct that would survive a "rule of reason" analysis. The difficulty of the "clear articulation" issue in this case may be due, in part, to the absence of provisions for active supervision: if respondents or the court of appeals had pointed to some mechanisms for active supervision, the details of those mechanisms might provide additional clues about the extent to which the legislature intended to displace the competition that the Sherman Act is designed to foster. See 1 P. Areeda & D. Turner, Antitrust Law Paragraph 212c, at 71 (1978) (stressing "interrelationship" of "adequate public supervision" and "clear state purpose to displace antitrust law" criteria). Since the absence of "active supervision" enables the Court to decide this case without deciding the clear articulation issue, we suggest that the Court may wish to defer further development of the law of clear articulation to a future case. CONCLUSION The petition for a writ of certiorari should be granted as to the first question presented. Respectfully submitted. CHARLES FRIED Solicitor General CHARLES F. RULE Acting Assistant Attorney General LOUIS R. COHEN Deputy Solicitor General ROY T. ENGLERT, JR. JOHN HARRISON Assistants to the Solicitor General CATHERINE G. O'SULLIVAN LAURA HEISER Attorneys ROBERT D. PAUL General Counsel Federal Trade Commission JULY 1987 /1/ The court of appeals did not address the issues raised by petitioner's decision to resign before termination of his privileges (Pet. App. 14a n.7), and respondents have not pursued the point in this Court. /2/ The court, however, viewing the evidence in the light most favorable to petitioner, characterized respondents' conduct as "shabby, unprincipled and unprofessional" (Pet. App. 17a). /3/ Although the court acknowledged that Oregon law grants immunity under state law only for good-faith peer review activity, it held that this fact demonstrated that petitioner had a state law remedy for any bad-faith actions (Pet. App. 13a-14a). /4/ We do not think the Court should grant certiorari as to the second question presented by the petition. Petitioner would be free to litigate in the courts below the only BOME-related question that is actually addressed in the body of his petition (at 19): whether, at any remaining trial, evidentiary use may be made of Russell's alleged abuse of his BOME position. The court of appeals did not pass on that evidentiary question (although, contrary to respondents' assertion (Br. in Opp. 37-38), petitioner did argue to the court of appeals that the BOME proceedings were admissible as evidence relating to the broader conspiracy (see Appellees' C.A. Br. 82)). There is no need for this Court to address that evidentiary question in the first instance. /5/ There is no split in the circuits, but the disagreement between the court below and the Seventh Circuit, on the one hand, and some of the district courts, on the other, illustrates the lack of clarity in this area. Compare Marrese v. Interqual, Inc., 748 F.2d 373 (7th Cir. 1984) (consistent with decision below), cert. denied, 472 U.S. 1027 (1985), and Doe v. St. Joseph's Hosp., 788 F.2d 411 (7th Cir. 1986) (following Marrese), with Quinn v. Kent General Hosp. Inc., 617 F. Supp. 1226, 1238-1239 (D. Del. 1985) (rejecting Marrese), and Posner v. Lankenau Hosp., 645 F. Supp. 1102, 1118 (E.D. Pa. 1986) (same). Commentators likewise have criticized the approach taken by the court below and the Seventh Circuit. See, e.g., Havighurst, Professional Peer Review and the Antitrust Laws, 36 Case W. Res. L. Rev. 1117, 1163 & n. 136 (1986) (describing both Marrese and the decision below as "unconvincing"). The difficulty of the area is highlighted by the fact that, when review of Marrese was sought in this Court (No. 84-1406), six States and the District of Columbia filed an amicus brief supporting a grant of certiorari and arguing that the decision of the Seventh Circuit was wrong. Among those States was Indiana -- the very State that had been held in Marrese to have shielded peer review from antitrust scrutiny under the state action doctrine. By contrast, the State of Oregon appeared as amicus in the court of appeals in this case, urging the court to find state action immunity. /6/ In adopting the 1986 Act, Congress found that "effective professinal peer review" is an important tool for the maintenance of high standards of medical care (Section 402, 100 Stat. 3784). Peer review can have significant procompetitive effects. Procedures designed to raise competence standards can help to stimulate the results that would obtain if consumers had the knowledge to make fully informed judgments about the medical services they select. Moreover, the enforcement of competence standards through the denial of staff privileges may enhance a hospital's ability to compete with other hospitals and may yield important efficiencies. See Havighurst, Doctors & Hospitals: An Antitrust Perspective on Traditional Relationships, 1984 Duke L.J. 1071, 1128-1131 (1984). /7/ The 1986 Act, which is not retroactive (see Section 416, 100 Stat. 3788), is not applicable to this case in any event. Accordingly, petitioner's proposed alternative disposition (Pet. 11 n.8) of vacating the decision below and remanding for reconsideration in light of the 1986 Act is not appropriate. /8/ Respondents must demonstrate their entitlement to the state action defense. City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 400 (1978). /9/ Respondents assert (Br. in Opp. 34 n.8) that a physician who feels aggrieved by the peer review process may file a complaint for administrative relief. The Attorney General of Oregon made a similar assertion in the court of appeals (see C.A. Br. of Amicus Curiae State of Oregon 31-32). Respondents and the Attorney General, however, have cited no specific authority for that assertion, and the court of appeals did not rely on the possibility of such administrative proceedings. The Oregon statute mandating peer review (Or. Rev. Stat. Section 441.055(3) (1985)) makes no specific mention of proceedings to review the result in a particular case. Nor is there specific provision in the statute for administrative orders requiring restoration of hospital privileges to a particular physician or requiring compensation of an injured physician. Rather, the Health Division's enumerated relief powers are limited to proceedings to remedy violations of the statute, which does not specifically prohibit termination of privileges for reasons unrelated to the standard of patient care. Indeed, the statute does not even make provision for a complaining physician to be accorded the status of a party in any investigative proceeding initiated by the Health Division. In the absence of a more specific showing by respondents that the Health Division offers an administrative remedy to physicians who believe that their hospital privileges have been wrongfully terminated, there is no basis for a conclusion that such review could constitute active state supervision. /10/ The reliance by the court of appeals (Pet. App. 11a) on Hoover v. Ronwin, 466 U.S. 558, 572 n.22 (1984), for the proposition that the availability of judicial review in state courts demonstrates active supervision is misplaced. In Ronwin the state supreme court was "acting legislatively rather than judicially" (466 U.S. at 568), exercising the authority of the sovereign under the state constitution. This Court therefore decided that it "need not address the issues of 'clear articulation' and 'active supervision'" (id. at 569). /11/ We do not suggest that judicial review may never play a role in the state's supervision of private conduct, for purposes of the state action doctrine. As this Court has noted, establishment of a system of "'regulatory oversight'" demonstrates a state's commitment to a program of regulation. See Southern Motor Carriers, 471 U.S. at 61-62 n.23 (quoting 1 P. Areeda & D. Turner, Antitrust Law Paragraph 213a, at 73 (1978)). It is clear, however, that if judicial review is to play a central role in the state's supervisory system, it must at least measure the allegedly state-endorsed private conduct against the state standards that are claimed to replace competition. /12/ Sections 411 and 412 of that statute immunize private parties who participate in peer review from state and federal antitrust damage actions if the professional review action is taken in the "reasonable belief that the action was in the furtherance of quality health care," after a reasonable effort to obtain the facts of the matter, after adequate notice and hearing procedures are provided, and in the "reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts." 100 Stat. 3784-3787. As noted above, however, the 1986 Act expressly preserves other, preexisting legal immunities. See pp. 6-7, supra.