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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Spindle v. Sisters of Providence in Washington (12/20/2002) sp-5651

Spindle v. Sisters of Providence in Washington (12/20/2002) sp-5651

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.

            THE SUPREME COURT OF THE STATE OF ALASKA

DAVID A. SPINDLE, M.D.,            )
                              )    Supreme Court No. S-10169
             Appellant,                 )
                              )    Superior Court No.
     v.                       )    3AN-98-10026 CI
                              )
SISTERS OF PROVIDENCE IN           )    O P I N I O N
WASHINGTON d/b/a PROVIDENCE   )
ALASKA MEDICAL CENTER;             )     [No. 5651 - December 20,
                                   2002]
ALASKA REGIONAL HOSPITAL;     )
ANCHORAGE NEUROSURGICAL       )
ASSOCIATES, INC.; JOHN C.     )
GODERSKY, M.D.; and LOUIS     )
KRALICK, M.D.,                               )
                              )
             Appellees.                 )
________________________________)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, John E. Reese, Judge.

          Appearances:  Andrew K. Kurzmann, Attorney at
          Law,  Anchorage,  for  Appellant.   John   M.
          Conway   and  Robert  J.  Dickson,  Atkinson,
          Conway  &  Gagnon,  Anchorage,  for  Appellee
          Sisters  of  Mercy Providence Hospital,  Inc.
          Matthew   K.  Peterson  and  Scott  Hendricks
          Leuning,  Clapp,  Peterson  &  Stowers,  LLC,
          Anchorage,     for    Appellees     Anchorage
          Neurosurgical   Associates,  John   Godersky,
          M.D., and Louis Kralick, M.D.

          Before:     Fabe,  Chief  Justice,  Matthews,
          Eastaugh, and Carpeneti, Justices.   [Bryner,
          Justice, not participating.]

          CARPENETI, Justice.

I.   INTRODUCTION

          Dr.  David K. Spindle appeals from the decision of  the

superior  court granting summary judgment to Drs.  Louis  Kralick

and  John  C.  Godersky  as  well  as  their  business  Anchorage

Neurosurgical  Associates, Inc. and Sisters of  Mercy  Providence

Hospital, Inc. on Dr. Spindles claims arising from his failure to

obtain  privileges at Providence Hospital.  Because the  superior

court  correctly found that Dr. Spindles failure  to  finish  his

application for privileges at the hospital rendered his antitrust

and  tort claims premature and thus not actionable, we affirm the

decision of the superior court.

II.  FACTS AND PROCEEDINGS

          Dr.  David K. Spindle is a neurosurgeon and is licensed

to practice medicine in Alaska.  Dr. Spindle has been licensed to

practice in California, Nevada, and Hawaii as well.

          Dr.  Spindle  practiced medicine  at  Downey  Community

Hospital  (Downey)  in  California before  coming  to  Anchorage,

Alaska  in  1996.   Dr. Spindle came to Alaska  after  seeing  an

advertisement in a medical journal for a neurosurgeon  at  Alaska

Native  Medical Center (ANMC).  Dr. Spindle worked  at  ANMC  for

approximately fourteen months.

          There  are a limited number of neurosurgeons in Alaska.

Drs.  Louis Kralick and John C. Godersky,  who practice  together

at  Anchorage  Neurosurgical  Associates,  Inc.  (ANA),  and  Dr.

Lawrence Dempsey were the only neurosurgeons in practice when Dr.

Spindle  arrived.   Drs.  Kralick  and  Godersky  were  the  only

neurosurgeons  with  privileges at Sisters  of  Mercy  Providence

Hospital, Inc. (Providence).  Dr. Godersky serves as chair of the

department of surgery at Alaska Regional Hospital, Inc. (ARH) and

formerly  served  as  a member on the credentials  committee  and

board  of  trustees  there,  as  well  as  chief  of  staff.   At

Providence,  Dr.  Godersky  was  the  subsection  chairperson  of

neurosurgery  at  the  time of Dr. Spindles application  and  had

served  as the treasurer of the medical staff.  Dr. Godersky  now

serves as chairperson of the department of surgery at Providence.

          On  August  8,  1995  Dr. Spindle applied  for  medical

privileges at ARH, and he applied for privileges at Providence on

August  10.  In applying to Providence, Dr. Spindle completed  an

appointment consent and release.  In it, he acknowledged that, as

an  applicant for appointment to staff membership and privileges,

I  have the burden of producing adequate information for a proper

evaluation  of  the above criteria and for resolving  any  doubts

about  such qualifications.  Dr. Spindle also agreed through  the

release to provide any additional information as may be requested

by the hospital, its Medical Staff or their representatives.

          On  November 2, 1995 Dr. Steven Floerchinger, chair  of

surgery at Providence, found Dr. Spindle qualified for privileges

pending  review  by  Dr.  John Godersky, neurosurgery  subsection

chair.   Dr. Godersky then allegedly reviewed the file  and  said

Dr.  Spindle  could  have  privileges.   Dr.  Godersky,  however,

refused to interview Dr. Spindle or sign off on his application.

          An  applicant for privileges at Providence is  required

to  complete  a  page  naming  the  exact  procedures  for  which

privileges  are  requested.   In  his  application  for   medical

privileges  at  Providence,  under neurosurgical  privileges  Dr.

Spindle checked off every category of procedures except for two.

          The  credentials committee at Providence found  certain

things  unusual  about  Dr.  Spindles  application.   First,  the

committee   found  it  unusual  that  Dr.  Spindles  professional

liability  insurance had been terminated.  Second, the  committee

found  it  unusual  that  Dr. Spindle had professional  liability

claims pending at the time of his application and that his letter

of  reference  was  from  a  doctor  outside  of  his  specialty.

Finally,  the  committee found it strange that Dr. Spindle  wrote

board qualified in neurosurgery in 1965 on his application.  This

was  odd  because  the  industry term is board  eligible.   Board

eligible means a practitioner has been accepted to take the  exam

for  board  certification.  One is board eligible for  a  limited

period  of  time while the exam is pending.  Dr. Spindle  is  not

certified  by the American Board of Neurological Surgery,  having

twice failed the oral section of the board exam.

          On  January 10, 19961 Douglas Bruce, Chief Executive of

Providence,  wrote  to  Dr. Spindle informing  him  he  had  been

granted   temporary  privileges,  effective  January  10  through

February 29, 1996.  The letter also stated that Dr. Spindle had a

scheduled  interview  with the committee  on  January  23,  1996.

Following  that interview, Bruce wrote Dr. Spindle  and  informed

him  that  his temporary privileges were terminated  because  Dr.

Spindle ha[d] not completed the application process and that  the

credentials   committee  had  tabled  his   application   pending

completion of the following:

          a.   The Chair of the subsection of Neurosurgery must review,
               interview, and provide a recommendation for privileges to the
               Credentials Committee.
          b.   Submit your plan for surgical coverage of your patients when
               you are not available to the Credentials Committee.
          c.   Submit your plan to have a Class I neurosurgeon[2] assist

               you on all major cases as noted in the Department of Surgery

               Rules and Regulations, Eligibility, Class II.

a.    The redacted minutes of the committees meeting reflect this

action.   Dr.  Godersky  did not attend  the  meeting  where  Dr.

Spindles  privileges were terminated and alleged that he  had  no

input in the termination of those privileges.

          In  early 1996, after moving to Anchorage, Dr.  Spindle

telephoned Dr. Kralick.  During the conversation Dr. Spindle  and

Dr.   Kralick  spoke  of  the  possibility  of  a  cross-coverage

arrangement.   Dr.  Godersky also spoke to  Dr.  Spindle  on  the

telephone.  Dr. Godersky inquired into the scope of Dr.  Spindles

practice  after being asked by Dr. Spindle to consider  a  cross-

coverage arrangement.  Dr. Spindle replied that he was performing

procedures  for operations on the cervical spine for degenerative

disk  disease and disk herniations, and operations on the  lumbar

spine  for  degenerative disk disease, and . .  .  carpal  tunnel

surgery.  Dr. Godersky specifically asked Dr. Spindle whether  he

cared  for pediatric patients and Dr. Spindle responded  that  he

did not.  Dr. Spindle also responded that he did not provide care

for intercranial aneurysms, brain tumors, and trauma patients.

          Dr.  Spindle attempted to find alternate physicians  to

provide  coverage for him in the event of his unavailability  but

he  was unsuccessful.  The doctor covering for Dr. Spindle  would

have  to  have  privileges at Providence to be  able  to  provide

coverage.   According to the letter from Providence, Dr.  Spindle

needed  general coverage for when he fell ill or was on  vacation

as  well  as  coverage  by  a  Class  I  neurosurgeon  for  major

procedures.  Dr. Spindle contacted Providence on February 5, 1996

to inform it that he was having problems obtaining coverage.  Dr.

Spindle  was  then  informed  by Providence  that  any  qualified

physician  could  provide his general coverage.  Providence  also

provided  Dr.  Spindle with a list of doctors  to  contact  about

coverage.  Dr. Spindle alleges that he was told that Drs. Kralick

and  Godersky  would not provide coverage for him.   Dr.  Spindle

also  alleges that both Dr. Godersky and Dr. Kralick  refused  to

even  meet  with  me  regarding providing  Class  1  neurosurgeon

coverage  and  that he was told by Drs. Kralick and  Godersky  in

essence,  that  I  should have asked for their permission  before

having moved up to Alaska seeking neurosurgical privileges.   Dr.

Spindle alleges he spoke to a Dr. Scott Mackie who said he  would

like  to  provide  coverage  for  him  but  declined  to  do   so

specifically  stating  that  if he did  so,  Drs.   Godersky  and

Kralick would no longer see his patients.

          As  a  part  of the application process, the  committee

asked Dr. Godersky as the chairperson of Providences neurosurgery

subsection to appear before it to respond to questions  regarding

Dr.  Spindles  application.  During this meeting on February  27,

1996  Dr. Godersky was asked what he thought of the subcategories

of   practice   for  which  Dr.  Spindle  sought  privileges   at

Providence.    This  question  most  likely  arose  because   the

committee had noted that neither [Dr. Spindle] nor his references

had  provided  information regarding the types of surgeries  [Dr.

Spindle] performed and their outcomes for the recent past despite

the  fact  he  had requested full neurosurgical privileges.   Dr.

Godersky replied that from the previous conversation he  had  had

with  Dr.  Spindle, he did not believe Dr. Spindle was  currently

performing  all  of  the procedures for which  he  had  requested

privileges.

          Dr.  Godersky thus made a recommendation that  if  [Dr.

Spindle]  was  applying for those particular privileges  to  take

care  of  those problems, that [the committee] ask him to provide

information  documenting that he, in fact,  had  current,  recent

experience  in  taking care of the people that he was  requesting

privileges   to  care  for.   Dr.  Godersky  did   not   make   a

recommendation as to whether Dr. Spindle was qualified to  obtain

privileges  at  Providence.  Dr. Godersky does not  recall  being

asked to interview Dr. Spindle or refusing to interview him as  a

part  of Dr. Spindles application process.  However, Dr. Godersky

does  recall that the reason he did not interview Dr. Spindle  is

that  regardless of what he recommended, it could  be  judged  as

[him]  making  a recommendation solely on the basis of  economics

.  .  .  .  Dr. Godersky claims he had no input regarding whether

Dr. Spindle was granted temporary privileges.  Also, Dr. Godersky

testified  that he never even saw all of Dr. Spindles application

and  that  he reviewed only the page with the list of  procedures

Dr. Spindle had requested the privilege to perform at Providence.

          On   March  26,  1996  Providence  wrote  Dr.   Spindle

requesting  he  provide  the discharge  diagnoses  and  discharge

summaries  of  all cases he had served on as the primary  surgeon

over  the past two years for review by the department of  surgery

chair.  Providence sometimes requires these documents to help  it

assess the specific privileges requested by an applicant as  well

as  his  or  her  current  clinical competence,3  which  must  be

assessed  in each subcategory of privileges an applicant  applies

for.   It  is  not  unusual to request discharge  summaries  from

applicants  and, according to Providences assistant administrator

half    maybe  half  of  the  applicants  who  then  supply  such

information  are  granted  requested  privileges.   Dr.   Spindle

          responded on April 19, 1996, but he did not provide the discharge

summaries.   He  provided only a partial list of  patients.   The

list  came from Nancy Stoner, director of medical record services

at  Downey.  In her cover letter to Dr. Spindle, she informed him

that  if  he  still wanted the discharge diagnoses and  discharge

summaries  there  would be a charge.  On May 20, 1996  Providence

again wrote Dr. Spindle, asking him to provide a complete list of

all  procedures  done at all hospitals during  this  time  frame,

including the discharge summaries for each patient.

          Discharge   diagnoses  and  discharge  summaries   were

required  so  that  the  credentials  committee  could  see   the

documentation  of  the  outcome of a  patients  surgery  and  the

discharge  instructions  the status of the patient and  what  was

performed and make clinical judgments about what theyre  reading.

No  such information was received from Dr. Spindle.  On June  27,

1996, at the request of the committee, Providence inquired as  to

the  status of its request for information and noted that if  the

documentation  was  not received by July 20, 1996,  Dr.  Spindles

application would be retired as incomplete.

          On July 3 Dr. Spindle contacted Providence and informed

it  that  he  was  presently  in the process  of  collecting  the

information requested in the committees May 26, 1996 letter.   In

that  conversation Dr. Spindle also allegedly noted that  he  had

spoken  to an attorney with the intent to sue the medical  center

for  not  expediting  his  privileges, but  was  advised  by  his

attorney  to provide the requested information, and then  if  his

application  for privileges is not approved he will  have  better

grounds for this lawsuit.

          On  September 20, 1996 Barbara Kuper, the medical staff

coordinator  at  Providence, not having  received  the  requested

information, telephoned Dr. Spindle.  Kuper stated that when  she

spoke  to  Dr. Spindle, he was surprised Providence  had  yet  to

receive the documents.  Dr. Spindle told Kuper that he would call

Downey  and  request  them again.  On September  26  Dr.  Spindle

dropped off a large packet of documents at Providence with Kuper.

However,  the  documents  were not the  discharge  diagnoses  and

discharge  summaries  previously  requested;  rather,  they  were

operative  reports.   Stoner,  the  director  of  medical  record

services  at  Downey, told Kuper that Dr. Spindle  had  requested

only  the  reports  about  three weeks  prior  and  that  he  had

specifically  asked  for operative reports instead  of  discharge

diagnoses and discharge summaries.

          On  October 16, 1996 Providence again wrote Dr. Spindle

to  inform  him  his  application was still incomplete.   In  the

letter,  Providence extended the deadline, notifying Dr.  Spindle

that  if it did not receive the discharge diagnoses and discharge

summaries by October 29, 1996, his application would be  retired,

requiring  re-application for privileges  in  the  event  he  did

produce the requested information.

          There  is  a  record  of a phone message  left  by  Dr.

Spindle on October 29, 1996 to Kuper.  In it, Dr. Spindle  stated

that  Downey  did not have the time nor the personnel  to  supply

these  discharge summaries.  Dr. Spindle further stated  that  he

was  trying to comply, preparatory to a lawsuit if he is not  put

on staff.

          Providence  again  wrote  Dr.  Spindle  regarding   the

discharge diagnoses and discharge summaries on November 5,  1996.

In the letter, the chair of the committee stated that ten percent

of the discharge summaries previously requested would be adequate

for  its  review.  The letter also stated that in order  for  Dr.

Spindles  application  to be complete, he  would  still  have  to

submit his plans for coverage.

          On  May 16, 1997 Providence received a call from Stoner

at  Downey regarding Dr. Spindles request for ten percent of  his

discharge  diagnoses and discharge summaries.  Stoner stated  she

was surprised since she had not heard from Dr. Spindle in such  a

long  time.   Kuper  informed Stoner that  the  request  for  ten

percent  of the discharge summaries dated from November 1996  and

that  she would check with the committee to see if it needed  any

further information from her.

          No  discharge  diagnoses  or discharge  summaries  from

Downey were ever received by Providence.  Dr. Spindle did provide

some  discharge  diagnoses  and  discharge  summaries  from   his

employment at ANMC.

          On  March  12,  1998 Dr. Spindles file was  retired  as

incomplete.  No  action had been taken on the file since May  16,

1997.

          On  September 16, 1999 Dr. Spindle filed his  complaint

in  superior court against Providence, ARH, ANA, and Drs. Kralick

and   Godersky   individually,  alleging  restraint   of   trade,

negligence,  and  intentional  interference  with  a  prospective

economic  advantage.  He also alleged defamation, but that  claim

was later dismissed in a stipulation by the parties.

          On  October  25,  2000  all  claims  against  ARH  were

dismissed  with prejudice by the superior court.  ARH  is  not  a

party to this appeal.

          On  December 4, ANA and Drs. Kralick and Godersky moved

for  summary  judgment on all claims.  Providence joined  in  the

motion.   The superior court granted summary judgment.  On  March

20,  2001 Dr. Spindle objected to the entry of final judgment  in

the  matter,  arguing that all claims contained in the  complaint

had not been disposed of, but final judgment was entered on April

10.

          Dr. Spindle now appeals.

III. STANDARD OF REVIEW

          I.   We review a trial courts grant of summary judgment de novo

and affirm its ruling if the record presents no genuine issues of

material  fact  in dispute and the moving party  is  entitled  to

judgment  as  a matter of law.4  We are not bound  by  the  trial

courts  articulated reasoning and can affirm a grant  of  summary

judgment on alternative grounds, considering any matter appearing

in  the record, even if not considered by the trial court.5   All

          reasonable factual inferences are drawn in favor of the non-

moving party.6

          In  antitrust  litigation, courts attempt  to  use  the

summary judgment process sparingly.7  When an antitrust plaintiff

has  established a prima facie case, he [or she] should  have  an

opportunity  to prove the necessary supporting facts  at  trial.8

However,  the  very  nature  of antitrust  litigation  encourages

summary disposition of such cases when permissible . . . .9

IV.  DISCUSSION

     Dr. Spindles Failure To Complete the Application Process Was

     Fatal to His Claims.

          Although requested by the committee, Dr. Spindle failed

to provide Providence with ten percent of the discharge diagnoses

and  discharge summaries that it had requested from his  previous

work.   Dr.  Spindle  also failed to submit a plan  for  surgical

coverage  of  his  patients  and  a  plan  to  have  a  Class   I

neurosurgeon assist him with all major cases.  Dr. Spindle claims

that his failure to complete the application process was a direct

result  of  the  appellees  anticompetitive  conduct.   Appellees

respond  that  Dr.  Spindles failure  to  furnish  the  necessary

information  renders any claim he might have ineffective  because

he  never  finished  his  application for medical  privileges  at

Providence.

          We  proceed cautiously when asked to review the actions

of  a  hospitals governing body.  Courts are in general agreement

that  the  decisions  of  a  hospital  governing  body  regarding

applications  for  hospital privileges are to be  accorded  great

deference, and that judicial review should be limited to  factors

which  are  within the expertise of courts.10  The evaluation  of

professional  proficiency  of  doctors  is  best  left   to   the

specialized  expertise of their peers, subject  only  to  limited

judicial surveillance.11  We recognize that the governing body of

a hospital must be given great latitude in establishing standards

which an applicant must meet before privileges will be granted.12

          At the same time, we may require a hospitals procedures and

standards  to be fair and reasonable as well as ensure that  they

are not applied in an arbitrary or capricious fashion.13

          Appellees actions with respect to the discharge records

comfortably satisfy the deferential review that we apply in these

situations.   In requiring the discharge diagnoses and  discharge

summaries,  appellees  merely  required  verification  that   Dr.

Spindle  maintained current clinical competence in the procedures

for  which  he sought privileges.  We have previously  recognized

that  it  may be difficult for a hospital to establish a  set  of

objective criteria to determine whether an applicant is qualified

for every medical privilege applied for.14  Especially in light of

the  telephone  conversation  with Dr.  Godersky,  in  which  Dr.

Spindle  admitted that his practice was limited in contrast  with

the  number  of  privileges he applied  for  at  Providence,  the

committees  request  for  the discharge diagnoses  and  discharge

summaries   was   unquestionably  reasonable   and   within   its

discretion.    Furthermore,  Providence  decreased  the   initial

requirement   from all Downey discharge diagnoses  and  discharge

summaries  to  ten percent of those records  to ensure  that  its

request  was reasonable.  And Dr. Spindle signed the consent  and

release in his initial application, acknowledging that he had the

burden to produce adequate information for a proper evaluation of

the  above  criteria  and for resolving  any  doubts  about  such

qualifications.  Finally, in creating a provision  regarding  the

civil  liability of hospitals for certain physicians, the  Alaska

legislature specifically found that a hospital is responsible for

exercising reasonable care in granting privileges to practice  in

the  hospital, for reviewing those privileges on a regular basis,

and for taking appropriate steps to revoke or restrict privileges

in appropriate circumstances.15

          Under  all of these circumstances, Dr. Spindles failure

to provide the credentials committee with the discharge summaries

information  that the committee needed to assess his  application

          is fatal to his claims.  The committee, denied the information

that was necessary to determine his fitness to practice the broad

range   of  neurosurgical  procedures  that  Dr.  Spindle  sought

privileges  to practice at Providence, was justified in  retiring

his  file  as  incomplete.  Thus, without  even  considering  Dr.

Spindles  anticompetitive conduct claims, which  related  to  his

failure  to  obtain coverage for his patients  when  he  was  not

available   and  his  failure  to  obtain  Class  I  neurosurgeon

assistance on his major cases, there was a sufficient  basis  for

the grant of summary judgment.

          The  requirement  to  provide the  committee  with  ten

percent  of  his discharge diagnoses and discharge summaries  was

within  Dr.  Spindles control and he failed to meet it.16   Thus,

despite  Dr.  Spindles arguments to the contrary,  this  case  is

analogous to Evers v. Edward Hospital Assn.17  In Evers, the court

held  that  an  applicant must provid[e] all  information  deemed

necessary by the hospital . . . as a condition precedent  to  the

hospitals  obligation to process the application.18  Dr.  Spindle

argues in response that this case is inapplicable because it is a

breach of contract action as opposed to an antitrust claim.   But

while  Dr. Spindle argues that the appellees prevented  him  from

competing for privileges, they did not prevent him from supplying

the  discharge  records that were requested.  It was  within  Dr.

Spindles power to obtain the discharge summaries but he failed to

do  so.   Based on the undisputed evidence before us from Stoner,

the  only inference that can be drawn from the record is that  he

simply chose not to do so.

          We   conclude,   as  in  Evers,  that   the   hospitals

requirement that a sample of discharge records be supplied was  a

reasonable  condition  precedent to any required  action  by  the

hospital.  The failure of Dr. Spindle to comply with this request

renders  his  claim of anticompetitive conduct and conditions  in

the  application process premature.  Until and unless Dr. Spindle

complies  with the clearly reasonable conditions he  may  not  be

          heard to complain that other acts and practices are unreasonable

and monopolistic.19

V.   CONCLUSION

          Because there are no genuine issues of material fact in

dispute,  we  AFFIRM the decision of the superior court  granting

appellees motion for summary judgment.


_______________________________
     1    The letter is actually dated January 10, 1995, but this
appears to be a simple typographical error.

     2      A  Class  I  neurosurgeon  is  a  term  specific   to
Providence.   To obtain this status, a neurosurgeon is  evaluated
by his or her peers and recommended to that status.

     3     Current clinical competence means peers have  assessed
the  clinical  performance of a physician and think  that  it  is
current, up-to-date and clinically appropriate  competent  within
the standard of practice expected in that field.

     4    Lincoln v. Interior Regl Hous. Auth., 30 P.3d 582, 585-
86 (Alaska 2001).

     5    Wright v. State, 824 P.2d 718, 720 (Alaska 1992).

     6    Lincoln, 30 P.3d at 586.

     7     Odom  v. Lee, 999 P.2d 755, 762 (Alaska 2000)  (citing
KOS  v.  Alyeska Pipeline Serv. Co., 676 P.2d 1069, 1073  (Alaska
1983)).

     8    Id.

     9    Collins v. Associated Pathologists, Ltd., 844 F.2d 473,
475 (7th Cir. 1988).

     10     Kiester v. Humana Hosp. Alaska, Inc., 843 P.2d  1219,
1223 (Alaska 1992).

     11     Eidelson  v. Archer, 645 P.2d 171, 177 (Alaska  1982)
(quoting  Sosa  v. Bd. of Managers, 437 F.2d 173, 177  (5th  Cir.
1971)).

     12     Kiester, 843 P.2d at 1225 (citing Sosa, 437  F.2d  at
176).

     13    Id. at 1223.

     14    Id. at 1225.

     15    AS 09.65.096(a).

     16    Dr. Spindle claimed at one point that he was unable to
provide the summaries because of cost.  But the record shows that
he  never  determined  the actual cost.  Moreover,  Dr.  Spindles
request  for operative reports instead of the discharge diagnoses
and discharge summaries that the committee had actually requested
served to increase the costs.

     17    617 N.E.2d 1211 (Ill. App. 1993).

     18    Id. at 1219.

     19     This  conclusion also justifies the entry of  summary
judgment on the hospitals immunity claims under federal and state
law  and  Dr.  Spindles  claim of intentional  interference  with
prospective economic advantage, and makes it unnecessary  for  us
to consider those issues.