This opinion will be unpublished and
                  may not be cited except as provided by
               Minn. Stat. § 480A.08, subd. 3 (1994)
                           State of Minnesota
                            in Court of Appeals

     Charles P. Ehlen, M.D., et al.,


The St. Cloud Hospital, et al.,
     Filed October 15, 1996
Klaphake, Judge

Stearns County District Court

File No. C2-95-798

Terence M. Fruth, Douglas L. Elsass, Fruth & Anthony, P.A., 3750 IDS
Center, 80 South Eighth Street, Minneapolis, MN 55402 (for Appellants)

Kevin J. Hughes, Timothy S. Murphy, Hughes, Mathews & Didier, P.A., 110
Sixth Avenue South, Suite 205, P.O. Box 548, St. Cloud, MN 56302-0548 (for

Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief
Judge, and Klaphake, Judge.
                        Unpublished Opinion

KLAPHAKE, Judge (Hon. Vicki Landwehr, District Court Trial Judge)

Following a lengthy peer review process, The St. Cloud Hospital (the
hospital) suspended the clinical privileges of appellant Charles P. Ehlen,
M.D., for his failure to comply with its 30-minute ``immediacy of care''
rule. In response, Ehlen sued respondents, the hospital and four urologists
affiliated with it, seeking monetary and declaratory relief. Respondents
moved for summary judgment, claiming immunity under the Health Care Quality
Improvement Act of 1986 (HCQIA), 42 U.S.C. §§ 11101-11152 (1994),
and this state's health-care ``review organizations'' statute, Minn. Stat.
§ 145.63 (1994). The district court granted summary judgment and
awarded costs and attorney fees to respondents, and Ehlen appealed. Because
there are no genuine issues of material fact and the district court
properly applied the law, and because the district court did not abuse its
discretion in awarding costs and fees, we affirm.

The HCQIA encourages medical peer review by granting limited immunity in
suits brought by disciplined physicians. If a ``professional review
action'' meets certain due process and fairness requirements, then review
participants shall not be liable for money damages. 42 U.S.C. §
11111(a). To receive the benefit of immunity, the professional review
action must be taken:

(1) in the reasonable belief that the action was in the furtherance
of quality health care,

(2) after a reasonable effort to obtain the facts of the matter,
(3) after adequate notice and hearing procedures are afforded to the
physician involved or after such other 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 facts and after meeting
the requirement of paragraph (3).

Id. § 11112(a). An action is presumed to have met these four
fairness standards ``unless the presumption is rebutted by a preponderance
of the evidence.'' Id.

The HCQIA grants broad discretion to a hospital board with regard to a
staff privileges decision. Bryan v. James E. Holmes Regional Medical
Ctr., 33 F.3d 1318, 1337 (11th Cir. 1994), cert. denied, 115 S.
Ct. 1363 (1995). On review of such a decision, a court's role is not to
substitute its judgment for that of the hospital's governing board or to
reweigh the evidence regarding the termination of medical staff privileges.
Suspension of Privileges
The hospital's department of urology adopted a rule that, within 30
minutes of notice, the attending urologist is required either to be
personally available to care for a patient or to have an alternative
urologist available, with whom prior arrangements had been made. Ehlen's
failure to comply with this rule ultimately led to his suspension. Ehlen's
suspension qualifies as a ``professional review action,'' defined as an
action by a hospital ``based on the competence or professional conduct of
an individual physician.'' 42 U.S.C. § 11151(9).

Ehlen argues that the district court erred in concluding that the hospital
suspended him ``in the reasonable belief that the action was in the
furtherance of quality health care'' or ``in the reasonable belief that the
action was warranted by the facts known after such reasonable effort to
obtain facts.'' Id. § 11112(a) (1), (4). While Ehlen claims that
material fact issues exist with regard to the hospital's reasonable belief,
these purported ``issues of fact'' are based on bare and unsubstantiated
allegations of malice directed toward him by the respondent urologists.(1)
        [Footnote] (1)Ehlen claims that the board of
        directors might have found a suspension
        inappropriate if it had known that the department of
        urology voted to adopt the 30-minute rule even
        though the respondent urologists fail to adhere to
        this standard at other hospitals. Ehlen further
        claims that the board might have arrived at a
        different decision if it had known that the
        respondent urologists ``had worked for years to
        force [him] from his practice.''

Evidence that the parties do not like each other or are competitors is
insufficient to establish malice. Bryan, 33 F.3d at 1335. And in
deciding whether a hospital's actions meet the fairness standards,
        [t]he test is an objective one, so bad faith is
        immaterial. The real issue is the sufficiency of the
        basis for the [hospital's] actions.

Austin v. McNamara, 979 F.2d 728, 734 (9th Cir. 1992) (footnote
omitted). Ehlen offers no evidence to challenge the reasonableness of the
hospital's actions, and he has failed to rebut the presumption of
reasonableness under sections 11112(a) (1) or (4).(2)
        [Footnote] (2)On appeal, Ehlen does not challenge
        the district court's conclusion that the suspension
        satisfied the remaining fairness standards set out
        in sections 11112(a) (2) and (3).

The district court therefore did not err in concluding respondents were
immune from liability for their actions in suspending Ehlen and in granting
respondents summary judgment on this issue.

Enactment of 30-Minute Rule
Professional review activities generally involve individual physicians.
Bryan, 33 F.3d at 1334 n.29 (termination of physician's medical
staff privileges); Austin, 979 F.2d at 737 (investigation and
suspension of physician). The district court therefore properly concluded
that because enactment of the 30-minute rule affected all urologists in the
department, not just an individual physician, it did not meet the HCQIA's
definition of a ``professional review activity.'' 42 U.S.C.
        [Footnote] (3)By notice of review, respondents
        challenge the district court's conclusion that
        enactment of the 30-minute rule was not part of a
        ``professional review action.''

The district court instead reviewed enactment of the rule under Minn. Stat.
𨳩.63 (1994), the state's health-care ``review organizations''
statute. Section 145.63 contains two standards of review: a malice standard
for actions adversely affecting an individual doctor and a reasonable
belief standard for rule-making decisions affecting everyone equally.
Applying the reasonable belief standard, the district court concluded that
respondents were immune from liability for enacting the 30-minute rule.

Even if we apply the more stringent malice standard, Ehlen failed to
produce evidence sufficient to raise a material fact issue as to whether
respondents acted with bad motive. Rather than produce evidence of
affirmative actions by respondents tending to exclude the possibility that
they were acting out of a reasonable concern over quality of care or
otherwise challenge the reasonableness of respondents' actions, Ehlen again
relies on broad and unsubstantiated allegations of malice.

And an examination of the events leading to enactment of the rule and
Ehlen's ultimate suspension negate the existence of malice or bad motive on
respondents' part. The enactment of the rule and suspension of Ehlen's
clinical privileges resulted from Ehlen's well-documented history of
failing to provide immediate care for his patients. The hospital's response
to this history was a progressive disciplinary process lasting more than
five years, and including informal warnings, probation, establishment of
the rule, and finally suspension of Ehlen's privileges. At each stage,
Ehlen was afforded ample procedural protections and an opportunity to be
heard. And while Ehlen suggests that he has been singled out and subjected
to an unreasonable standard, the record indicates that Ehlen's status as a
sole practitioner should not have affected his ability to comply; moreover,
Ehlen's opinion that the rule was unnecessary is not enough to suggest
malice or otherwise question respondents' intentions in enacting it.
Finally, given the long history of Ehlen's conduct and the hospital's
efforts to reform that conduct, Ehlen cannot complain that his suspension
constituted disproportionate discipline. We therefore conclude that the
district court did not err in determining that respondents were immune from
liability for enacting the 30-minute rule.

A district court may order a continuance
        [s]hould it appear from the affidavits of a party
        opposing the [summary judgment] motion that the
        party cannot for reasons stated present, by
        affidavit, facts essential to justify the party's

Minn. R. Civ. P. 56.06. In deciding whether a continuance should be granted
to allow more time for discovery, a district court must focus on two
issues: first, whether the party seeking the continuance is acting from a

good faith belief that material facts will be discovered, or is merely
engaged in a ``fishing expedition,'' and second, whether the party has been
diligent in seeking discovery prior to bringing the motion. Bixler by
Bixler v. J.C. Penney Co., 376 N.W.2d 209, 216-17 (Minn. 1985).

Ehlen argues the district court abused its discretion by not continuing the
summary judgment motion pending further discovery on the issue of malice.
In his affidavit opposing the motion for summary judgment, Ehlen alleged
that hospital staff members informed him that the respondent urologists had
directed them to prepare documents critical of Ehlen's practice and to
provide these documents to hospital officials. Ehlen, however, failed to
submit affidavits from these staff members or otherwise explain his
inability to obtain these affidavits. In addition, Ehlen's motion to compel
discovery sought documents relating to respondents' business and financial
plans and depositions of the respondent urologists to determine whether
their conduct was subject to immunity. These discovery requests were more
along the lines of a fishing expedition rather than an attempt to obtain
facts essential to oppose respondents' summary judgment motion. The
district court therefore did not abuse its discretion by refusing to grant
a continuance under rule 56.06.

Ehlen seeks review of the district court's order granting attorney fees and
costs under 42 U.S.C. § 11113. A review of the district court file
reveals that judgment has not been entered on the order granting attorney
fees and costs. An order for the recovery of money, including attorney
fees, generally must be reduced to judgment prior to appeal. Sheeran v.
Sheeran, 481 N.W.2d 578, 579 (Minn. App. 1992). We nevertheless extend
review to the district court's order granting fees and costs ``[i]n the
interests of judicial economy.'' Id.; See also Minn. R. Civ.
App. P. 103.04.

Three federal circuits have explicitly adopted an abuse of discretion
standard to review awards of attorney fees and costs under the HCQIA.
Muzquiz v. W.A. Foote Memorial Hosp., 70 F.3d 422, 432 (6th Cir.
1995); Smith v. Ricks, 31 F.3d 1478, 1487 (9th Cir. 1994), cert.
denied, 115 S. Ct. 1400 (1995); Johnson v. Nyack Hosp., 964 F.2d 116,
123 (2nd Cir. 1992). The district court in this case determined that the
hospital was a ``substantially prevailing party'' on Ehlen's claims with
regard to the suspension of medical privileges and that Ehlen's conduct
during litigation was ``frivolous, unreasonable, without foundation, or in
bad faith.'' See 42 U.S.C. § 11113. These determinations are not
without basis in the record and do not represent an abuse of the district
court's discretion. In addition, the district court properly limited its
award to fees and costs expended in defending the hospital's suspension of
Ehlen's privileges. We therefore affirm the award of fees and costs.