Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Health care system allegedly engaged in anticompetitive scheme by wrongfully terminating medical privileges, (Sep 25, 2014)

By Linda O’Brien, J.D., LL.M.

A health care system and its related entities allegedly engaged in a conspiracy to monopolize the health care system in the state and restrain competition by wrongfully terminating the medical privileges of independent physicians, according to a complaint filed in the federal district court in Columbus, Ohio (Emlich v. OhioHealth Corporation, September 24, 2014).

William F. Emlich is a physician practicing over 20 years and board certified in gastroenterology, hepatology, and internal medicine. He has credentials at several hospitals and is a clinical professor at Ohio University Heritage College of Osteopathic Medicine. Dr. Emlich first obtained privileges at Doctors Hospital in 1989 and served as chair of the Department of Medicine.

The complaint states that in 2004 Dr. Emlich, as chair of the hospital’s Department of Medicine, expressed his opposition to a hospital’s proposal concerning course of treatment in the intensive care unit. Subsequently, Dr. Emlich’s standard of care was called in question for the first time in his 15 years at Doctors Hospital. At no time previously at Doctor’s Hospital or any other hospital had Dr. Emlich’s care been subject to review. A review was conducted based on unfounded claims and Dr. Emlich was not allowed to present expert witnesses in his defense.

In September 2005, Dr. Emlich reported the hospital’s vice president’s abuse of the peer review process to the State Medical Board of Ohio. However, the Board responded that no disciplinary action was warranted. In 2006, Dr. Emlich was again targeted and subject to peer review, but was not allowed to respond to the allegations with expert testimony. In 2009, Dr. Emlich expressed his opposition to fraudulent billing practices by the defendant hospital and refused to perform procedures at an overly evaluated cost, according to the complaint.

The complaint alleges that, on three separate occasions, Dr. Emlich’s care was questions in an effort to intimidate him. He was able to provide expert testimony regarding his standard of care in one of the cases. Under the threat of immediate, permanent suspension, Dr. Emlich was coerced into agreeing not to exercise his privileges at either Doctor’s Hospital or any other OhioHealth hospital. Although Doctor’s Hospital and Dr. Emlich agreed to refer Dr. Emlich’s patients to another hospital, Doctor’s Hospital instead referred his patients to physicians employed by OhioHealth.

In 2012, an ad hoc committee was convened and, allegedly without an appropriate investigation, issued a report recommending that Dr. Emlich’s medical staff appointment and clinical privileges be terminated. Subsequently, a hearing took place by Dr. Emlich’s request and the hearing officer was chosen solely by Doctor’s Hospital. Based on an incomplete and biased investigation, the hearing officer affirmed the decision of the committee.

The defendants allegedly engaged in a systematic manner to rid their hospitals of independent physicians or competitors. Additionally, OhioHealth initiated a scheme to monopolize the health care system in Ohio by controlling pricing and access to medical care, and by intimidating physicians, the complaint alleges.

The plaintiff asserts claims for violation of Sections 1 and 2 of the Sherman Act, due process, tortious interference with business relations, civil conspiracy, intentional infliction of emotional distress, and defamation. The action seeks injunctive relief, compensatory and punitive damages, costs of suit, attorney fees, and any other just and proper relief.

The case is No. 2:14CV1697-JLG.

Attorneys: David A. Zika (Whonsetler & Johnson, PLLC) for William F. Emlich, Jr.

Companies: Associates in Gastroenterology and Hepatology, Inc.; OhioHealth Corporation; Doctors Health Corporation of Nelsonville; MedCentral Health System; The Sheltering Arms Hospital Foundation, Inc.

News: Antitrust OhioNews