Antitrust Law Daily Wrap Up, ANTITRUST—D. Ore.: Physician’s antitrust claims against hospital over peer review process can proceed, (Jan 27, 2014)

By Linda O’Brien, J.D., LL.M.

A physician adequately pleaded antitrust claims against a hospital and several other physicians regarding the hospital peer review process that resulted in restrictions on his clinical privileges, the federal district court in Portland, Oregon, has ruled (Roberts v. Legacy Meridian Park Hospital, Inc., January 24, 2014, Simon, M.). However, the physician lacked standing to pursue his unfair trade practices claims under Oregon’s Unlawful Trade Practices Act (UTPA).

Dr. Warren Roberts was an African-American neurological surgeon who practiced medicine in Oregon and owned the Aspen Spine and Neurosurgery Center. In March 2011, Roberts obtained clinical privileges at Meridian Park Hospital. Drs. Francisco Soldevilla, Robert Tatsumi and Timothy Keenan operated competing spine and neurosurgical practices, and were the only spine surgeons with clinical privileges at the hospital, other than Roberts. In October 2011, Meridian Park initiated a peer review of Roberts’ care of a specific surgical patient which resulted in a precautionary suspension of his clinical privileges at the hospital and imposed restrictions on his ability to perform lumbar procedures. Roberts filed suit against the hospital and physicians. In addition to the antitrust and UTPA claims, he alleged that the peer review, precautionary suspension, and restrictions on his clinical privileges were based on his race. The defendants moved to dismiss for failure to state a claim.

Roberts argued that the defendants conspired to restrain him from practicing his trade at Meridian Park. He also alleged that their anti-competitive actions have reduced the quality of available neurological surgery services and threatened to drive him from the market. Although the mere threat to drive a participant from the market was insufficient to show injury to competition, a reduction in quality of products or services may constitute an antitrust injury, according to the court. Moreover, Roberts’ alleged injuries sustained as a result of his suspension and restricted privileges continued in the form of damages and was a cognizable injury under antitrust law, regardless of whether his privileges were ultimately restored, the court concluded.

The court also determined that Roberts adequately pleaded that the defendants attempted to monopolize the spine and neurosurgical services market. In light of his allegations that he and three physician defendants were the only spine surgeons with clinical privileges at the hospital, any exclusion of Roberts from the market would leave the physician defendants collectively holding one hundred percent of the market. An aggregation of market shares of rivals was sufficient to show a conspiracy to monopolize. Thus, the defendants’ motion to dismiss these claims was denied.

UTPA claims. However, the court found that Roberts lacked standing to bring a claim under the UTPA because he did not allege that he was a consumer of any defendant’s products or services. Only a consumer had standing to bring a claim under the UTPA.

Finally, Roberts’ racial discrimination and aid and abetting claims were dismissed as improperly brought as separate claims. However, the plaintiff was allowed to replead the claims as a single claim.

The case is No. 3:13-cv-01136-SI.

Attorneys: Matthew A. Levin (Markowitz, Herbold, Glade & Mehlhaf, P.C.) for Warren G. Roberts and Aspen Spine and Neurosurgery Center, P.C. Keith S. Dubanevich (Stoll Stoll Berne Lokting & Shlachter, P.C.) for Legacy Meridian Park Hospital, Inc. and Andrew B. Cramer. Robert D. Scholz (MacMillan Scholz & Marks) for Northwest Neurosurgical Associates, LLC and Francisco X. Soldevilla. Elizabeth E. Lampson (Davis Rothwell Earle & Xochihua, P.C.) for Pacific Spine Specialists, LLC. Jeffrey W. Hansen (Smith Freed & Eberhard P.C.) and James L. Dumas (Hart Neil & Weigler, LLP) for Robert L. Tatsumi.

Companies: Aspen Spine and Neurosurgery Center, P.C.; Legacy Meridian Park Hospital, Inc.; Northwest Neurological Associates, LLC; Pacific Spine Specialists, LLC

Cases: Antitrust OregonNews