Contrary to Fahlen's assertion, HCQIA impactsalllitigation arising from peerreview, not just claims for damages. Although HCQIA's immunityis specific to liability for damages (42 U.S.C. § 11111(a)), HCQIA 18 also protects peer review participants by allowing costs and attorney's fees for defendants who prevail on a claim for either damagesor injunctive relief. (42 U.S.C. § 11113.) Moreover, Fahlen's unsupported assertion that HCQIA's immunities do not apply if the peer review actions were motivated by retaliatory animus ignores the vast body of case law suggesting otherwise.

And, the court gives no consideration to the constitutional implications ofits abrogation holding: If Section 1278.5 abrogates the Westlake rule andthe related qualified immunity for hospitals and officials, how is Section 1278.5 reconciled with federal law that confers immunity for hospitals and professionals participating in peer review. (42 U.S.C. § 11111(a)(1), (a)(2) [professional review bodies immune for damages for professional review actions]; see 42 U.S.C. § 11151(11), (4)(A) [professional review body includes hospital].) 19 4732211.6 important public interests and its resolution is of profound importance to hospitals, health care professionals, and physicians across California.

HCQIA extends federal immunity to participants in medical staff peer review proceedings that meet the federal definition of a fair procedure. (42 U.S.C.A., § 11111.) Significantly, those federal fair procedure provisions expressly allow the hospital to appoint both the hearingofficer and panel membersofthe JRC. (42 U.S.C.A., §§ 11112(b)(8)(A)(@) & Gii); 11151(4).