Antitrust Law Daily Wrap Up, ANTITRUST—7th Cir.: Independent physician lacked standing to bring antitrust claims against hospital, (Mar 12, 2014)

By Linda O’Brien, J.D., LL.M.

An independent physician lacked standing to bring antitrust claims against a hospital over its refusal to reinstate his medical privileges at the facility, the U.S. Court of Appeals in Chicago has decided (Fisher v. Aurora Health Care, Inc., March 11, 2014, Per Curiam).

Dr. Albert Fisher is a family practice physician who maintains an independent practice in Oshkosh, Wisconsin. Aurora Health Care, Inc. owns and operates the Aurora Medical Center (AMCO), which is located near another major hospital. Fisher had joined the medical staff at AMCO and arranged with another physician to see his patients when he was not “on call.” In 2010, AMCO changed its policy and required all medical staff, including independent physicians, to be on call 24 hours a day, 7 days a week. In 2011, AMCO informed Fisher that his medical staff privileges would not be renewed unless he agreed to the 24/7 call coverage, or provide equivalent alternate coverage by a physician who was on AMCO’s medical staff. In 2012, AMOC refused to consider Fisher’s re-application for medical staff privileges. At that time, Fisher held staff privileges at other hospitals and medical centers in the area.

Fisher filed suit against Aurora, alleging that his exclusion from the AMCO medical staff was part of an anti-competitive conspiracy to exclude independent physicians from the hospital and that the exclusion denied his access to an essential facility, in violation of Sections 1 and 2 of the Sherman Act. Specifically, Fisher claimed that Aurora eliminated independent physicians from its medical staff in order to reduce costs and, as a result, deprived patients of second opinions from independent physicians. Aurora’s motion to dismiss the complaint for failure to state a claim was granted by the district court. Fisher’s motion for leave to amend his complaint was denied on the basis that it was impossible for him to sufficiently amend his complaint.

The appellate court found that Fisher lacked standing to bring his antitrust claims. He cited no authority to support his claim that the loss of medical services provided by independent physicians was the type of injury recognized by antitrust laws. Consumers, insurance companies, or groups of physicians would better serve as plaintiffs than individual physicians to enforce potential antitrust violations. In this case, Fisher was not the plaintiff who could most efficiently vindicate an alleged antitrust violation.

Although Fisher was arguably a direct competitor of AMCO, the causal connection between his alleged injury and alleged antitrust violation was tenuous. Fisher presented no evidence that patients in the Oshkosh metropolitan area were deprived of independent physicians. Moreover, Fisher had staffing privileges at other hospitals and medical facilities in the area.

Finally, the district court did not err in denying Fisher’s request to amend his complaint. Fisher presented no facts that would be sufficient to state a claim, the court concluded.

The case is No. 1:13-CV-00152.

Attorneys: Michael D. Leffel (Foley & Lardner LLP) for Aurora Health Care, Inc.

Companies: Aurora Health Care, Inc.

Cases: Antitrust IllinoisNews IndianaNews WisconsinNews