Antitrust Law Daily Wrap Up, ANTITRUST—DNJ: Doctor Fails to Demonstrate Anticompetitive Agreement Between New Jersey Hospital and Physicians, (Dec 27, 2012)

By Tobias J. Gillett, J.D., LLM.

A doctor could not maintain a Sherman Act antitrust claim against a hospital and affiliated physicians over alleged efforts to drive him from the hospital because the doctor failed to demonstrate an anticompetitive agreement for Sherman Act purposes, the federal district court in Newark, New Jersey has ruled (Mazzoccoli v. Merit Mountainside LLC, December 20, 2012, Linares, J.).

In December 2003, the doctor, Dr. Vito Mazzoccoli, M.D., was granted admitting privileges at the defendant hospital, Mountainside Hospital, in Caldwell, New Jersey. According to his complaint, Dr. Robert Brenner, M.D., a senior administrator at the hospital, saw Dr. Mazzoccoli’s admission to the hospital as competition for his own family practice and engaged in a campaign of harassment aimed at forcing Dr. Mazzoccoli out of the hospital.

This campaign allegedly included threats, “baseless” accusations, and efforts to enlist hospital employees to monitor Dr. Mazzoccoli’s actions. Dr. Brenner complained that Dr. Mazzoccoli had fraudulently backdated notes on patients’ charts. After an investigation allegedly concluded that Dr. Mazzoccoli had dated the notes incorrectly, not fraudulently—and that Dr. Brenner had acted inappropriately during the investigation—Dr. Brenner resigned from the hospital.

According to Mazzoccoli’s complaint, this event angered Dr. Theresa Soroko, M.D., another physician at the hospital, who was purported to be Dr. Brenner’s “friend and lover.” After another meeting regarding Dr. Mazzoccoli’s recordkeeping, Dr. Brenner’s replacement, Dr. Durgesh Mankikar, M.D., allegedly told Dr. Mazzoccoli that “You are going to have problems with them. I am trying my best to try to help you, but now they have found another case against you.”

Following Mountainside’s acquisition by another healthcare concern, Dr. Soroko replaced Dr. Mankikar and allegedly continued Dr. Brenner’s campaign of harassment against Dr. Mazzoccoli, including instituting another investigation of him. After an interaction with a nurse’s aide led to a sexual harassment complaint against Dr. Mazzoccoli, Dr. Soroko reported Dr. Mazzoccoli to the New Jersey Board of Medical Examiners. A hospital Medical Examination Committee meeting determined that Dr. Mazzoccoli’s privileges at the hospital should be suspended, and this result was also reported to the Board of Medical Examiners.

Dr. Mazzoccoli brought suit against the hospital, alleging, among other claims, that the defendants’ “series of sham peer reviews that led to his expulsion from Mountainside Hospital (the relevant market) and from the treatment of patients at Mountainside Hospital living in New Jersey (the relevant geographic market)” constituted a violation of the Sherman Act. The court dismissed his initial complaint for failure to allege an antitrust injury, a relevant product market, a relevant geographic market, or facts sufficient to “raise a reasonable expectation that discovery would reveal evidence of an illegal agreement between the defendants.”

Dr. Mazzoccoli first attempted to cure the deficiencies in his complaint by referring to the alleged relationship between Dr. Soroko and Dr. Brenner and by arguing that an agreement could be inferred from that romantic relationship. The court disagreed, citing Third Circuit precedent for the proposition that “mere contacts and communications, or the mere opportunity to conspire, among antitrust defendants is insufficient evidence from which to infer an anticompetitive conspiracy in the context of the denial of hospital surgical privileges.”

Dr. Mazzoccoli also contended that the words “they” and “them” in Dr. Mankikar’s statement to him referred to Dr. Brenner and Dr. Soroko, and demonstrated that they “were still actively engaged in the effort to ‘get’” him. Even if Dr. Mazzoccoli’s interpretation were accurate, the court found, the statement only showed that Dr. Brenner and Dr. Soroko had “engaged in similar, parallel efforts to harm” Dr. Mazzoccoli. Such parallel conduct could not serve as proof of an illegal agreement absent “a context that raises a suggestion of a preceding agreement,” the court concluded.

Therefore, the court dismissed Dr. Mazzocoli’s Sherman Act claim with prejudice. In addition, the court dismissed his Section 1985(3) civil rights claim, and, having thus dismissed all federal causes of action, declined to exercise its supplemental jurisdiction over his state law claims.

The case is Civil Action No. 12-2168.

Vito Mazzoccoli, M.D., pro se. Richard B. Robins (Brach Eichler L.L.C.) for Merit Mountainside LLC. Michael Samuel Bubb (Bubb, Grogan & Cocca, LLP) for Theresa A. Soroko, M.D.

Cases: Antitrust NewJerseyNews