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 Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Brief for the United States as Amicus Curiae Supporting Petitioner TABLE OF CONTENTS Interest of the United States Statement Introduction and summary of argument Argument: The court of appeals erred in concluding that alledged anticompetitive use of Oregon's peer review scheme constitutes "state action" immune from the antitrust laws A. Allegedly anticompetitive behavior by private parties constitutes immune "state action" only if the state exercises ultimate control over that behavior B. Respondents have not shown that the State of Oregon exercises ultimate control over their allegedly anticompetitive behavior 1. Review of privilege termination procedures by the hospitals themselves and by the state Health Division is not evidence of state control over privilege termination decisions 2. The requirement that the state Board of Medical Examiners be promptly notified of decisions to terminate privileges is not evidence of state control over those decisions 3. The possible availability of judicial review of privilege termination decisions under state common law or state antitrust law is not evidence of state control over those decisions Conclusion QUESTION PRESENTED The United States will discuss the following question: Whether the State of Oregon engages in "active supervision" of the decisions of hospital peer review committees to terminate doctors' staff privileges, as is required in order for the state action doctrine to bar a terminated doctor's antitrust lawsuit against members of the peer review committee and their alleged co-conspirators. INTEREST OF THE UNITED STATES The United States has primary responsibility for enforcement of the federal antitrust laws and therefore has a substantial interest in assuring that those laws are construed in a manner that advances their objectives. At the Court's invitation, the United States filed a brief at the petition stage of this case. STATEMENT 1. Petitioner is a surgeon practicing in Astoria, Oregon. Astoria has only one hospital, Columbia Memorial Hospital (CMH). Respondents are physicians who at all relevant times were partners in the Astoria Clinic. A majority of the staff members at CMH were employees or partners of the Astoria Clinic. In 1973, after expiration of a one-year contract with the Astoria Clinic, petitioner declined an invitation to join the Clinic and instead began an independent practice in competition with surgeons 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). Boelling's complaint, along with complaints about 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 retracted it after petitioner sought judicial review (id. at 5a-6a). In November 1981, at the request of respondent Harris, another Clinic physician, the peer review committee at CMH began proceedings to terminate petitioner's hospital privileges (Pet. App. 7a). The chairman of the committee was respondent Boelling, who earlier had complained about petitioner to the BOME and, in that forum, had testified against petitioner concerning some of the cases that were now before the committee. Petitioner requested that members of the committee testify on the subject of their personal bias against him, but they refused; during his presentation at the peer review hearing, the committee allegedly was inattentive. Eventually, petitioner resigned from the hospital staff rather than risk termination. Id. at 7a-8a. /1/ 2. Petitioner sued the Astoria Clinic and its physicians. Petitioner claimed violations of Sections 1 and 2 of the Sherman Act, 15 U.S.C. 1 and 2. Petitioner also claimed that respondents were liable under state law for the tort of interference with prospective economic advantage. Pet. App. 2a, 8a, 16a n.13. /2/ Petitioner contended that respondents' primary motive in conducting peer review was to reduce or eliminate competition from petitioner rather than to improve patient care. Respondents vigorously denied this, and the factual dispute was submitted to the jury. /3/ The jury found against certain respondents on the Section 1 claim, the Section 2 claim, and the tort claim and also found that punitive damages should be awarded on the tort claim. It awarded damages of $650,000 on petitioner's two antitrust claims taken together. The court, as required by law (15 U.S.C. 15), trebled the antitrust damages. The jury awarded petitioner an additional $20,000 compensatory and $90,000 punitive damages for tortious interference with prospective economic advantage. Pet. App. 8a. 3. The court of appeals reversed. It found that there was substantial evidence that the respondents had acted in bad faith (Pet. App. 9a, 12a-13a). /4/ Nonetheless, it ruled that, even if respondents had misused the hospital peer review process to disadvantage a competitor rather than to improve patient care, respondents' conduct was "state action" immune under the two-part 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, private conduct is deemed state action and immune 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 of appeals concluded first 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 (footnote omitted)). 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" (id. at 9a-10a (citing Or. Rev. Stat. Sections 441.030, 441.055(3)(c) and (d) (1985))). Thus, the court said, Oregon has shown an intent to limit consumer choice as to physicians (Pet. App. 11a-12a). The court of appeals also found that Oregon actively supervises the private parties who engage in peer review, thereby satisfying the second part of the Midcal test. The court held that "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 demonstrated active supervision. Pet. App. 10a-11a. /5/ Accordingly, the court of appeals reversed the judgment and remanded the case to the district court for a determination of whether petitioner had any surviving antitrust claims, independent of the peer review process (id. at 2a, 14a). /6/ INTRODUCTION AND SUMMARY OF ARGUMENT The state action doctrine is "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). The two-part Midcal test, requiring clear articulation and active supervision, is meant to ensure that a restraint of trade is immunized from antitrust scrutiny only if it is truly the product of state regulation. Such a restraint 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 (footnote omitted)). A restraint that is merely the product of private anticompetitive activities is not immune, even if the activities fall within a category generally authorized by the state, 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). The alleged anticompetitive actions in this case are not the product of state regulation because the second part of the Midcal test is not met: Oregon does not supervise its peer review scheme sufficiently to make respondents' actions fairly attributable to the State. The State provides no review to determine whether a hospital's termination of a doctor's privileges conforms in particular instances to the State's substantive policies. The contrary conclusion of the court of appeals erroneously affords antitrust immunity in the absence of adequate assurance that the alleged anticompetitive actions were the product of state regulation. Thus, the judgment of the court of appeals is incorrect whether or not the first part of the Midcal test is satisfied, i.e., whether or not the State "clearly intend(ed) to displace competition in (this) field with a regulatory structure" (Southern Motor Carriers, 471 U.S. at 64). Because the court of appeals so clearly erred in applying the second part of the midcal test, we will not address the harder question whether the court also erred in applying the first part. See U.S. Amicus Br. 15 (at petition stage). ARGUMENT THE COURT OF APPEALS ERRED IN CONCLUDING THAT ALLEGED ANTICOMPETITIVE USE OF OREGON'S PEER REVIEW SCHEME CONSTITUTES "STATE ACTION" IMMUNE FROM THE ANTITRUST LAWS A. Allegedly Anticompetitive Behavior By Private Parties Constitutes Immune "State Action" Only If The State Exercises Ultimate Control Over That Behavior This case involved 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 interest, 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 ("A private party * * * may be presumed to be acting primarily on his or its own behalf."). 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 is warranted only if the state's program of active supervision offers realistic assurance that, in the judgment of the state, private parties' exercise of discretion in particular instances furthers a state regulatory policy. Only then can the federal courts be confident that the state is not impermissibly "frustrating the national policy in favor of competition by casting a 'gauzy cloak of state involvement' over what is essentially private anticompetitive conduct" (Southern Motor Carriers, 471 U.S. at 57 (quoting Midcal, 445 U.S. at 106)). It is essential to the state action defense that the state exercise ultimate control over the anticompetitive restraint. In the seminal state action case, Parker v. Brown, supra, this Court 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, this 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, this 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 the private parties themselves. When the latter is the case, there is insufficient public control to confer antitrust immunity."). Thus, for respondents to prevail in this case, the Court must find active supervision by the State -- must find that Oregon exercises "ultimate authority and control" (see Southern Motor Carriers, 471 U.S. at 51) -- over medical staff peer review decisions or privilege decisions by hospitals. Merely finding some state involvement or monitoring does not suffice. See id. at 57; 324 Liquor, slip op. 9 n.7; Midcal, 445 U.S. at 106. And it is respondents who must demonstrate their entitlement to the state action defense. City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 400 (1978). B. Respondents Have Not Shown That The State of Oregon Exercises Ultimate Control Over Their Allegedly Anticompetitive Behavior The court of appeals held that "(t)he 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). Respondents have sought in this Court to defend, and to expand on, each of those three forms of alleged active supervision. 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 has been followed and to correct any abuses. 1. Review of privilege termination procedures by the hospitals themselves and by the state Health Division is not evidence of state control over privilege termination decisions Oregon has a 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). That requirement, however, is irrelevant to active supervision by the State. The hospital is a private actor, not a representative of the State. Although the court of appeals did not discuss them, respondents rely on the state Health Division's general supervisory and investigatory powers over 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, 441.025, 441.055 (1985); Br. in Opp. App. 3-8, 12-17). The relevant statutes, however, do not provide for administrative review of private privilege termination decisions. Whatever the Health Division's power over the establishment of peer review procedures by private hospitals, /7/ its activities would not constitute active supervision of private peer review decisions unless the Health Division in fact supervises peer review decisions and has power to overturn a peer review decision that does not conform to state policy. The crux of the complaint in this case is not that peer review procedures are defective, but that private parties used those procedures to eliminate competition by terminating a physician's privileges. Active supervision is meaningful only if such actual decisions made in the peer review process are reviewed. See, e.g., Midcal, 445 U.S. at 105-106 (emphasizing the fact 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); 324 Liquor, slip op. 9 n.7. And the Health Division offers no such supervision. /8/ 2. The requirement that the state Board of Medical Examiners be promptly notified of decisions to terminate privileges is not evidence of state control over those decisions Oregon hospitals are required by statute to notify the BOME promptly of a decision to terminate privileges (Or. Rev. Stat. Section 441.820 (1985)). There is, however, no indication that the BOME in fact determines whether the termination of privileges was proper or has authority to remedy any abuse. At most the statute suggests 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. Cf. Feminist Women's Health Center 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). The BOME does not have statutory authority to undo 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. See Tambone v. Memorial Hosp., 825 F.2d 1132, 1134-1135 (7th Cir. 1987). /9/ 3. The possible availability of judicial review of privilege termination decisions under state common law or state antitrust law is not evidence of state control over those decisions. The typical way in which a state actively supervises private conduct, so as to satisfy the second part of the Midcal test, is by giving an administrative agency supervisory authority over that conduct. See generally 1 P. Areeda & D. Turner, Antitrust Law Paragraph 213 (1978); P. Areeda & H. Hovenkamp, Antitrust Law Paragraph 212.9e (Supp. 1986). Indeed, it is only in cases involving review by administrative agencies, or state supreme courts with agency-like responsibilities over the organized bar, that this Court has held that there was active supervision. See Southern Motor Carriers, 471 U.S. at 62-63 (state public service commissions); Bates v. State Bar, 433 U.S. 350, 362 (1977) (state supreme court acting as "policymaker"); Parker v. Brown, 317 U.S. at 352 (state agricultural prorate advisory commission). The court of appeals, however, held that Oregon's case law showed that there is judicial review of privilege termination decisions and that the availability of judicial review in state courts is evidence of active state supervision (Pet. App. 11a). /10/ Respondents, seeking to expand on this holding, point not only to the two Oregon cases cited by the court of appeals, but also to Oregon's antitrust laws and the tort remedies sought in this case, as "clear and convincing evidence of active state supervision through the medium of judicial review" (Supp. Br. in Opp. 9; see id. at 5-9; Br. in Opp. 32). It may perhaps be true that judicial remedies can sometimes 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 (Southern Motor Carriers, 471 U.S. at 61-62 n.23 (quoting 1 P. Areeda & D. Turner, supra, Paragraph 213a, at 73)), and there is no inherent reason why it must be a state agency rather than a state court that provides such oversight. It should be clear, however, that judicial remedies, if they are to play a central role in the state's supervisory system, must at least be active and measure the allegedly state-endorsed private conduct against the state standards that are claimed to replace competition. The state action doctrine was meant to immunize from antitrust scrutiny conduct that is supervised by the state sufficiently to amount to the state's own conduct, not to substitute any and all state-law judicial remedies for the federal antitrust laws. The state-law judicial remedies that the court of appeals and respondents cite do not rise to the level of active supervision. It is not even clear that Oregon law affords any sort of "judicial review," in the usual sense, 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. See Straube v. Emanuel 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 * * *."). /11/ Even assuming that the Oregon courts will eventually resolve the question left open in Straube and Huffaker by providing some sort of remedy, respondents have made no showing that it would be the kind of judicial review that would constitute active supervision by the State. There is no reason to think a state court would review the merits of the termination of privileges to determine whether the termination served the State's policy of maintaining high standards of patient care rather than respondent's anticompetitive private interests. To the contrary, any review available would seem to be both deferential and limited to questions of procedural fairness rather than the application of state substantive standards. /12/ The Oregon Supreme Court in Straube said 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 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 at 384, 600 P.2d at 386). The same court in Huffaker 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). This type of 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, respondents' conduct should be treated as their own and not the State's. See Town of Hallie, 471 U.S. at 46-47. The remedies that might be available to terminated physicians under a state's common law of tort (see Supp. Br. in Opp. 7-8) provide no more basis for a finding of active state supervision than the remedies posited in Straube and Huffaker. The tort of interference with prospective economic advantage, even if it might be broad enough to encompass some anticompetitive privilege termination decisions, is a common law tort whose elements bear no necessary relationship to any state policy encouraging or regulating the peer review process through which such decisions are made. /13/ Indeed, the existence of any state tort remedy, unless its elements necessarily encompass a full examination of the peer review statute's permissions and prohibitions, is irrelevant. Quite simply, the scrutiny applied to any given conduct in a common law tort action is entirely different in kind from the sort of regulatory scheme, displacing competition, that this Court has treated as active supervision sufficient to satisfy the second part of the Midcal test. Certainly, respondents have not shown that Oregon, through its tort law, has "'demonstrated its commitment to a program through its exercise of regulatory oversight.'" Southern Motor Carriers, 471 U.S. at 62 n.23 (quoting 1 P. Areeda & D. Turner, supra, Paragraph 213a, at 73). Likewise, there is no merit to respondents' suggestion that active supervision exists because "Oregon antitrust laws grant judicial review to hospital-based peer review" (Supp. Br. in Opp. 8). First, if the mere existence of a state antitrust law constituted active state supervision, then the second part of the Midcal test would be automatically met in all cases, because all states have antitrust laws (see 13 J. Von Kalinowski, Antitrust Laws and Trade Regulation Section 132.01, at 132-4 (1987); id. App. 132A, at 132A-20 to 132A-27). Such a result would render this Court's previous discussions of active state supervision superfluous. Second, respondents' assertion that petitioner has a cause of action under state antitrust law is fundamentally inconsistent with their position that the challenged conduct is protected from the federal antitrust laws under the state action doctrine because state law in this area has displaced the policy favoring free and open competition that underlies both the federal and the state antitrust laws. Oregon's antitrust statute (Or. Rev. Stat. Sections 646.705 et seq. (1985)) is modeled on the Sherman Act, and decisions construing federal law are statutorily declared to be "persuasive authority" in construing the Oregon law. Or. Rev. Stat. Section 646-715(2) (1985); see 14 J. Von Kalinowski, supra, Section 169.01, at 169-2. Just as federal antitrust law is designed to ensure "unfettered competition in the marketplace" (Southern Motor Carriers, 471 U.S. at 61), the Oregon law is designed "to encourage free and open competition in the interest of the general welfare and economy of the state" (Or. Rev. Stat. Section 646.715(1) (1985)). This is the antithesis of what the state action exemption protects -- i.e., actively supervised activity pursuant to state regulation designed to displace competition. In sum, none of the three judicial remedies on which the court of appeals and respondents rely -- state common law "judicial review," state tort law, and state antitrust law -- amounts to active state supervision. In the absence of such supervision, respondents are not entitled to immunity under the state action doctrine. /14/ CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. CHARLES FRIED Solicitor General CHARLES F. RULE Assistant Attorney General LOUIS R. COHEN Deputy Solicitor General KENNETH G. STARLING Deputy Assistant Attorney General ROY T. ENGLERT, JR. Assistant to the Solicitor General ROBERT B. NICHOLSON LAURA HEISER Attorneys ROBERT D. PAUL General Counsel Federal Trade Commission NOVEMBER 1987 /1/ The court of appeals did not address any 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/ An additional count of the complaint charged respondents with violation of state antitrust laws (Or. Rev. Stat. Sections 646.725, 646.730 (1985)), but that count was not submitted to the jury. /3/ The jury was instructed, among other things, that respondents and their alleged co-conspirators "had the right to refuse to deal with (petitioner) for any reason, good or bad, so long as they did so as a result of their own business judgment and not as a result of or in pursuance of any conspiracy" (Tr. 2915); that "(s)uch conduct of (respondents) which (the jury found) to have been primarily motivated by legitimate business * * * or professional objectives, such as (respondents') alleged concern for proper patient care and interpersonal relationships between members of the staff, is not anticompetitive in purpose" (Tr. 2918); that, if the jury found that respondents' conduct "was predominantly motivated by legitimate business or professional aims and not by a specific intent to injure or destroy competition, (it) must find in favor of (respondents) on (petitioner's) conspiracy and attempt to monopolize claim" (Tr. 2922); that "if (respondents') practices were motivated by concerns over provision of health care to the community and are of the type which would govern reasonable persons confronted with the same or similar circumstances, that (the jury) should find that (respondents) did not have the specific intent to monopolize the market for surgical services" (Tr. 2922-2923); that, if the jury found that respondents "in initiating proceedings before the Columbia Medical Hospital Ad Hoc Committee acted in good faith and without malice, * * * their actions and conduct are immune from liability and their conduct may not be considered as evidence of any unlawful conspiracy or attempt to monopolize or in connection with claims of wrongful interference with staff privilege(s)" (Tr. 2932); and that the jury could award punitive damages on petitioner's claim under state tort law only if it first determined that respondents "were guilty of wanton misconduct which was a cause of damage to" petitioner (Tr. 2934). /4/ Viewing the evidence in the light most favorable to petitioner (as it was required to do because the jury had returned general verdicts in favor of petitioner on each of his claims), the court of appeals characterized respondents' conduct as "shabby, unprincipled, and unprofessional" (Pet. App. 17a). /5/ 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 actions were within the scope of a state official's authority, were taken pursuant to express state policy, and were contemplated by the State. Pet. App. 12a. As we read the petition, no challenge to this holding of the court of appeals has been brought before this Court, and we accordingly express no views on its correctness. We do agree with petitioner (Pet. 19) that, even assuming the correctness of the holding that Russell's BOME activities are state action that cannot directly form the basis for antitrust liability, evidence of those activities is admissible insofar as it provides evidence of a non-immune conspiracy in which Russell and others engaged. Unlike petitioner, however, we do not think that the court of appeals has said anything to the contrary. /6/ The court of appeals also reversed and remanded the case for a new trial on the state-law claim because the trial court had not properly instructed the jury on state-law immunities (Pet. App. 17a). Petitioner has not asked this Court to review the disposition of his state-law claim by the court of appeals. /7/ The Health Division may investigate and prosecute violations of public health laws, which presumably would include the statutory requirements 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. 6-8). 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). /8/ Respondents, but not the court of appeals, have asserted (Br. in Opp. 34 n.8) that a physician who feels aggrieved by the peer review process may file a complaint for administrative relief. Respondents, however, have cited no specific authority for that assertion. The Oregon statute mandating peer review (Or. Rev. Stat. Section 441.055(3) (1985)) makes no 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. /9/ The Seventh Circuit in Tambone did not hold, as respondents contend (Supp. Br. in Opp. 3), that active supervision would have existed if there had been mandatory reporting of peer review decisions to the Illinois State Medical Disciplinary Board. Rather, the court noted that legislation enacted after the events in issue in that case, requiring such reporting, "was the first time that there was any supervision of the peer review process by an Illinois agency" (825 F.2d at 1135 (emphasis added)). The court observed that the legislation was "of no avail to defendants" in that case because it was enacted after the relevant events (ibid.), and the court had no occasion to comment on what significance the legislation might have for events occurring after its enactment. /10/ In so holding, the court of appeals erroneously relied on Hoover v. Ronwin, 466 U.S. 558, 572 n.22 (1984). In Ronwin the state supreme court was "acting legislatively rather than judicially" (id. 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/ Respondents would infer from a provision of the State's statutory law of evidence that, despite the doubts expressed by the Oregon Supreme Court in Straube and Huffaker, there must exist some form of judicial review of privilege termination decisions. See Supp. Br. in Opp. 7 (quoting Or. Rev. Stat. Section 41.675(5) (1985)). The inference is tenuous. When a state legislature has not provided for any form of statutory judicial review of certain decisions, and the state supreme court has posed but not answered the question whether there exists any form of nonstatutory judicial review, a legislative determination that certain evidence should be admissible when and if judicial review is afforded is hardly compelling evidence of the availability of judicial review. In any event, nothing in the cited statute, which merely governs the admissibility of evidence and does not purport to create or define any right of action, either provides or adverts to any substantive standards that the state courts are to apply when and if they engage in judicial review of privilege termination decisions. Section 41.675(5) therefore provides no evidence at all that state courts will measure privilege termination decisions against the substantive policies of the State to ensure that such policies are carried out. /12/ As respondent concedes (Supp. Br. in Opp. 6), the Oregon Attorney General views any judicial review that might be available as limited to review of the fairness of procedures and compliance with Health Division requirements, which do not specifically require that private privilege termination decisions implement the state policy of improving patient care. /13/ Petitioner in this case was awarded damages on the theory that respondents had committed the tort of interference with prospective economic advantage under state law. The reversal of that award by the court of appeals was based on the failure of the trial court to give proper instructions on state-law immunities, not on a rejection of the theory that the tort as pleaded was actionable under state law (see Pet. App. 14a-17a). The trial court instructed the jury that it could find respondents liable in tort based on any of five different actions (see id. at 16a n.13; Tr. 2928-2929), one of which related to the peer review process and four of which did not. /14/ The quite different immunity provided for in the Health Care Quality Improvement Act of 1986, Pub. L. No. 99-660, Tit. IV, 100 Stat. 3784-3794 (to be codified at 42 U.S.C. 11101-11152), which was enacted well after the events at issue in this case, does not affect this case. Although the Act in furtherance of "effective peer review" insulates the peer review process from antitrust damage liability in cases covered by the statute, the Act is not retroactive (Section 416, 100 Stat. 3788 (to be codified at 42 U.S.C. 11111 note)), and it expressly provides that it does not change other "immunities under law" (Section 415(a), 100 Stat 3787 (to be codified at 42 U.S.C. 11115(a))). Moreover, the Act permits antitrust liability if a plaintiff establishes by a preponderance of the evidence that peer review action does not meet the standards specified in the Act, including the requirement that action be taken "in the reasonable belief that (it) was in the furtherance of quality health care" (Section 412(a), 100 Stat. 3785-3786 (to be codified at 42 U.S.C. 11112(a))).