Antitrust Law Daily Wrap Up, ANTITRUST—D. N.J.: Physician granted final chance to pursue claims over loss of clinic privileges, (Dec 28, 2015)

By Michael Menzhuber, J.D., LL.M.

A motion to dismiss a physician’s antitrust and equal protection complaint, arising from his loss of clinical privileges, was denied in part and granted in part by the federal district court in Camden, New Jersey. The court conditioned the physician’s opportunity to file a second amended complaint on his strict compliance with the Federal Rules of Civil Procedure (Gabros v. Shore Medical Center, December 22, 2015, Hillman, N.).

After David E. Gabros, M.D. was suspended from his clinical privileges at Shore Medical Center (SMC), he filed an amended complaint against SMC and three SMC physicians (collectively, “SMC defendants”), and Linwood Care Center (Linwood) that alleged, in part, a violation of equal protection, the Sherman Act, and the New Jersey Antitrust Act.

The SMC defendants and Linwood moved to dismiss the amended complaint on the ground that they had never been properly served. Linwood also moved to dismiss because there were no factual allegations in the amended complaint as to how it was involved in Gabros’ claims. Gabros responded by filing a motion that appeared to be both an opposition to the defendants’ motion and a request to file a second amended complaint.

Following the holding in Dole v. Arco Chemical Co., 921 F.2d 484 (1990) that a leave to amend should be granted freely in order to ensure that a claim will be decided on its merits rather than a technicality, the court granted Gabros a final opportunity to have his case move forward on the merits. However, it conditioned that opportunity on Gabros complying with the following: (1) obtaining a proper summons for each SMC defendant; (2) properly serving each SMC defendant with the summons and copy of the amended complaint; and (3) filing a formal motion for leave to file a second amended complaint.

The court dismissed the complaint against Linwood because it contained no factual allegations that would support Gabros’ claims. However, it noted that Linwood could become a defendant in the action only if: (1) it grants Gabros’ motion for leave to file a second amended complaint, which contains sufficiently pleaded claims against Linwood; and (2) Gabros properly serves Linwood with the court-approved second amended complaint.

The case is No. 14-1846 (NLH/JS).

Attorneys: Timothy J. McIlwain (McIlwain LLC) for David E. Gabros, M.D.; Kevin J. Thornton (Cooper Levenson, P.A.) for Shore Medical Center, Scott Strenger, M.D., Jeanne Row, M.D., Peter Jungblut, M.D.; Matthew Thomas Corso and Eric Daniel Heicklen (Buchanan Ingersoll & Rooney) for Linwood Care Center.

Companies: Shore Medical Center; Linwood Care Center

Cases: Antitrust NewJerseyNews